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£ us 




^^ 16S3 East Moin Street 

^^ Rochester, New York t4609 USA 

^S (716) *B2 - 0300 - Phone 

^B (716) 28a - J9B9 - Fox 




Published in the Canadian Law Times, The Canadian Law Journal, 
The Acadia Atkenaum, The Harvard Law Review 

» - 


1. Lord Chief Justice Mansfield . . C. L.T.Vol. 36, p. 274 

2. Fraud of Agent, Fraud of Prin- 

'^^'^^^ C. L.T.Vol. 34. p. 205 

3. A Lawyer's Descent into Hades. . C. L.T.Vol. 37, p. 131 

4. Sir Matthew Hale; The Great 

•^""^^ •• •• C. L.T.Vol. 37. p. 355 

5. Contracts in Restraint of Trade C. L. J.Vol. 36. p. 612 

6. Informal Bills and Notes . . . . c. L. J.Vol. 38, p. 662 

7. Action for Malicious Prosecution C. L. J.Vol. 40, p. 296 

8. A New Phase of Equitable Es- 

Harvard Law Review 

Vol. 19, p. 113 

9. Silas Alward, Q. C. . D. C. L. . by Pro- 

fessor Robert Von Clure Jones, 

A. M. , LL. D. . his Classmate . . . . The Acadia Athena>um 

Vol. 25, p. 1 

10. The Unity of the Empire. Oration at end of Book. 

11. An .anglo-American Alliance. At end of Book. 


<Ia"a6<an law Zi 


as to whether his Srerwll ll"' "'^" '^^^^ ^^i««d 
twenty-one will be Jiable to ^ r ^^''^ ''^<^^ the age of 
have to be interned^ aht'temTr'"''"^ ^^^ ^^ -" 

^^^^"^t^:^^ ^^-«el^, With Which 
the time when it was every F-^™'"' '''^"' *" "^^ 
Chatham's Iangua^rwLl.f^T^"' ^^^''^ that- 
^ And Wolfe 's gSLt W p ' ""^/^'^ *""^"« 
The attitude oHe BritT^ n"'' ^^*^ ^*« «^ 
world over in the present en . ,,^^'""i°"wealth the 
to recall these words whhou' '"' ^^*" '"^^^«« "« 

Sk^etr Lr.^^^^^^^^^ ^-tness, . 

What miffhtst fhmw^ .T'^^*^ '^"^• 
Were alutylmZTi',^' "f^^"^ ^^^^^ thee do 
As Mr. Sidne/w s^v^^^^^^ 

vieiv for March- ^ '" ^^^ Fortnightly Re- 

tne British realm/ Pwm(>& and races which constitute 

VOL. xxsn. c.i,.T.— 18 


.-I - 
\ II 


1 ! 

■ ; 



[vol.. 'M\ 

Tlu' Einpin'-wi(b' <lobate nbout tho Empire, and 
whrthor somo Umn ..i closer organic iimon cannot Ih« 
.lovised, t.> 1.0 carried into effect after the war, -and, 
perhaps, in part inaugnrated even before the peace to 
which we all lo.>k lorward.-pr.K'eeds apace Apropos 
oC the recent attendances of Sir Robt Borden, and of 
M Hughes, prinu. nunister of the Au^ ra ban Co^n- 
nionwealth, at nu-etrngs "'/^'7'!""V ' ^^ 1\ 
Low, whose GovenHnice of F.ujlmu^ is so J.*'" ""' 
favourably known, sa> , in a letter to the Innes of 
March loth last. 

. U is of immen^ Importance f ^he development of .he Kn. 

plre constitution to have It recognized ^^^^J. ^^^^^^^J^J^g ,„ a. other 
one State IS eligible for au^n^an^ ^^^^^^^^ 

TSs ::tVaTa'rmrof:i Executive CouncU confers on h.n, 
the requisite qualification.' 

\iul in a letlor to the Times of ^larch 18th/' R. D. 
Deim^^ 1," who we take it is th. Hon. R. D. Dennian 
M P fo • Carlisle in the Imperial pai-hament, af er 
nuotin.^ Mr. He bert Samuel's recent declaration that 
r Government is " very r^ady to admit the Domuv- 
ions into a share in decisions of policy as soon as tliev 
desire such admission." says that— 

Ko =iiro of nursuing a policy recognizably 


And adds :— , , , 

•our present Cabinet. ^^^^^^'Z' ^nTcmT^<^^'^^^^ 
the nation, differs '^'^^i^^^^T.^ev^d Jo ^^^^^^ ^ ^^^"^ - ^ 
we have grown up. And. ^*^*°S.^^,;,^^^I,._v. ^ell take the next 
summary of British f/«=^«' ^J. f^^oc^sm^f The Empire. Most 
logical step, and provide us with a ™»c"'"'™ °J ^j ^t to a direct 
people will agree that Canada ^^^^ »^*« ^^^^^^j^,^ Se us as the 
share In the decision of such problems as Ue be ^^^^^^ ^^ 

Labour Party. After the war we can U we c ^,^^. 

leisure to the party Cabinet, and ^ ^ ««J^ j7^„*, "u^tomary British 

;r Pu"t e^x^^ti^^g ^stUuTir t fu^'iV- ---- --'• '' 

manifestly appropriate to the present times. 

On the other hand, in the mneteenth ^'^"tj^f"^ 
March, Sir Francis Piggott, late Chief Justice of Hong 




Ivoiiff. coiidennis ns (piito i ipructicnhlo citlicr the iv- 
prpsentation of th,. Doininions in tl.o parlinn.ont at 
U c'stnmistcr, or the jhtu anciit admission of Dominion 
memhors into tl.o Imporinl Cabinet. Mo thinks hnv- 
oyor, that in the't both of foreign afTairs and 
ol the business of the Cabinet there is ro.)m for organie 
i.nprovement, and tiiat it might be possibh' so to reor- 
ganize them as to admit the Dominions to their share 
in the Imperial (lovernment. His suggestion is that 
hose members only should be ealled to nu-etings of 
the Cabinet MJiose Departments are eoneerned with or 
who have soi'ie sjjecial knowledge ot the business ii; 
hand, the .sekvticm being, of course, in the hands of t»'e 
1 rime Minister. He thinks this suggestion might bJ.— 

to bo^rairjiTi.*" ^° allow the representatives of the Dominions 
to be called »o discuss with the Secretaries of State in Council the 
great policies and questions which concern and govern the issues 
Of peace and ^v„r.• The policy ultimately agr.ed on as to any ques- 
tion H-ouId become a pact between the Mother Country and the 
Daughter Nati v.,; in tne formation of it they would have haS 
their share, and the Cabinet would assume responsibility to the 
Empire for carrying It out." 

Harvard, hi electing Profes.«')r Roscoe Pound to be 
I>an of its Law School, has chosen a ^nun " who is 
not only fit to continue the splendid tradition of Lang- 
deil and Ames, but, what is hette, still, one who is 
bound to create a new and lital t:adition on his own 
account. ' ' This we read in a striking appreciation of 
i rotessor Roscoe Poun- by Morris R. Cohen in The 
New Republic for March Htli :— 

nf i^ ^«^' ^fh°'f s have always tendi to regard the main features 
Of the traditional common law as fixed principles by which human 
affairs m eternally be governed o,,j of the achieve- 
ments 01 rofessor Pound is to have challenged this dogma of 
finality of the common law " as the beginning of wisdom and the 
eternal Juial order.- Law is a means not an end. The end is jus- 
tice between living human beings here and now. and as social con- 
ditions change, the law must keep pace. . . . Langdell revolu- 
tionlzed the teaching of law and raised the standard of the legal 
profession by Insisting on the simple principle that law Is a science. 
Mr. I'ound Is sure to produce an equally important and bei.eficent 
revolution by Insisting on the more obvious principle that !aw is a 
social science.' 






[VOL. 36 


44 Bedford Row, W.C. 

March 6th, 1916. 

The Editor, 

The Canadian Law Tunes, 

^^*Since niy last letter few tilings of outstanding inter- 
est have occurred in legal circles. 

The Under-Secretary for Foreign Affairs, Lord 
Robert Cecil, K.C., has been appointed -Minister of 
Blockade," his duties being to superintend and organ- 
fze matters relating to Blockade The Prime Minister 
has also given him a seat in the Cabinet. Lord Robert, 
who is the third son of the late Marquis of Salisbury, 
was called to the Bar in 1887 and had r extensive 
practice in Parliamentary matters b. ''ore he t^ook office 
in the Government. I^rd Robert shares v-th his late 
illustrious father indifference to dress, ««<! may 
frequently be seen with papers poking out of the 
pockets of his coat. Lord Robert has also the stooping 
shoulders associated in the mind ^VIth the late Lord 

At the end of last month Sir Samuel Evans was 
well onougii to resume his duties at the Law Courts, 
sitting in the Prize Court for the first time since his 
long and trying illness on the last day m February 
The Attorney-General voiced the congratulations ol 
the Bar on his lordship's recovery. 

The Judicial Comuiittee of the Privy Council is now- 
hard at work sitting in two Divisions hearing appeals 
- from the Prize Courts, but so far no decision ot out- 
' standing interest has been given. 

Among the most interesting cases before the House 
of Lords recently was the appeal in the -^ase of The 
Continental Tyre etc. Co., Ltd., v. Daimler Co It will 
be remembered that the Court of Appeal decided 




(Buckley, L.J., diasentinff) that a rom, .ny if rcfjri.H- 
terccl in Enj?lati<l is an Enjflish company < tlio 
fact that tho overwhelming majority of the share- 
holders and all *he directors are al' i enemies resident 
in(Sermany. Their lordships resei \«'d judj^nient. One 
of the most interestinj? featu/es of this appeal was the 
fact that the President of the Court was the venerable 
Lord Ilalshury who re<" ' od the a^e of !K) years last 
summer, who was alreadx a barrister before the other 
Law Lonls wlio composed the Court were born. 

Sir John Simon, K.C., the late Home Secretaiy — 
has returned to practice at tho Bar, and it is said that 
his Brief in the forthcoming action r The Law Guar- 
antee Trust and Accident Society v. *e Law Accident 
Insurance Society is marked with a fee of 7,0()0 
guineas. It is also rumoured that Mr. Duke, X.C, the 
leading counsel ..pposed to Sir John in this case 1' 's a 
similar fee marked on his Brief. 

In the course of their Report the Committe.. on 
Public Retrenchment once more recommended reforms 
in the administration of justice, all of which would, if 
carried out effect large economies. They advise that 
the recommendations of the Royal Commission on tho 
Civil Service with regard to the Legal Departments to 
which I referred in a previous letter, sliould be carried 
out at the earliest jwssible date ; and that it should be 
considered whether judges' secretaries, clerks and 
marshals need be paid out of the public funds. Among 
the other suggestions for economy is the oft-urged 
shortening of the Long Vacation from 10 weeks to 8 ; 
the re-organisation of the Circuit System and the ex- 
tension of the County jurisdiction. In order to extend 
the jurisdiction of County Courts a statute would be re- 
quired. This matter has within recent years been con- 
sidered by the Law Society, and before the War they 
gave support to a Bill which proposed that ail common 
law actions might if desired be commenced in the 
County Court, subject to a right on the part of tlie 
defendant to remove it to the High Court. 





[vol. 36 

As is well known recent years have seen 'an 
enormous increase in the number of matters assigned 
to the County Courts. The fact that in ordinary 
actions there is jurisdiction up to £100 , w^hile equitable 
matters involving as much as £500 may be dealt with, 
added to the fact that the County Court is the appro- 
priate tribunal for all cases under the Workmen's 
Compensation Act whatever the amount claimed, all 
tend to show the importance of these local courts which 
administer justice all over the county. 

There is, ho-vever, always seiious complaint on the 
part of solicitors concerning the time Avasted in travel- 
ling to distant Courts and in waiting for a case which 
is perhaps not reached. This adds weight to the sug- 
gestion discussed at the last meeting of the Law- 
Society that there should be a Central County Court 
established in London where the parties might (subject 
to the consent of the Kegistrar) agree to have the 
action decided. It is midoiibtedly true that this would 
in many cases be a great convenience, but it is little 
likely to become an accomplished fact. 

As is well known there is no Court in Ireland which 
has jurisdiction to dissolve a marriage. The result is 
that, as it was formerly in England, no one but wealthy 
persons can obtain a divorce, since a special Act of 
Parli&ment is required. During the last Session three 
such Acts received the Royal Assent. 

A suggestion is made that a Royal Army Legal 
Corps should ho formed for the purpose of giving 
legal aid to soldiers at the front. 

The case to Avhich I called attention last month has 
been before the Court of Appeal who have affirmed the 
decision of the Divisional Court that a British subject 
of hostile origin or associations can be interned : the 
Regulation authorising this made under the Defence 
of the Realm Act, 1914, is not ultra vires. In the 
opinion of the Court of Appeal the regulation was one 
which was in terms authorised by the express words 
of the statute as a regulation * for securing the public 




safety and the defence of the reahn,' and in their 
opinion Parliament had expressed its intention with 
irresistible clearness and the power to issue the 
regulation was vested in the Kin^ in Council. Al- 
though the decision has been nuich criticised, yet as 
was said by Sir John Simon in the House of Connumis 
when the subject was recently discussed, — "for i)er- 
sons who were not enemy subjects, they nuist have in 
a war such as this, some regulation, not of the technical 
kind requiring strict proof, l)ut some proper regulation 
to secure the safety of the State." 

In several cases which have ])een l)efore the Courts, 
persons of enemy origin have sought to evade the dis- 
abilities of alien enemies by showing tliat although 
undoubtedly born in Cilermany they are not now Ger- 
man subjects because they liave lost their (Jerman 
nationality. The claimants do lu^t allege that they 
hav'e acquired any other nationality but contend that 
they are persons of no nationality — in fact they are 
Stateless. So far no claimant has succeeded in making 
good his contention, and in the latest case on the sub- 
ject {Ex parte Weber) the House of Lords dismissed 
the appeal ol' Weber on the ground that he had not dis- 
charged the burden of showing that he had so divested 
himself of German nationality that he could be treated 
here as though he were not a German citizen. 

A recent decision (Kcch v. Faher, 60 S. J. 253) 
appears to be the only reported case in which a vendor 
of land has recovered a substantial sum, no less than 
€19,818 as damages for the difference between the con- 
tract price and the value of the land on the pui-chaser 
failing to complete his purchase. 

The new Trading nitli the Eueuiij Amendment Act, 
1916, contains an extremely important provision in 
section 2. It will be remembered that the effect of war 
on contracts with an enemy is in some cases to avoid 
them, while in others the contracts are merely sus- 
pended during the continuance of the war. It must also 
be remembered that even where tlie contract is avoided 



[VOL. 36 


at common law, this will only occur where the other 
party is actually resident or carrying on business in 
enemy territory. Sect. 2 of the present Act provides 
that where it appears to the Board of Trade tha4 a 
contract was entered into before or during the war 
with an enemy or enemy subject the Board of Trade 
may by order cancel such contract. This section en- 
ables the Board of Trade to determine a contract even 
where the other party is not domiciled in an enemy 
coiuitry but being a person of enemy nationality is 
resident or carries on business in a neutral country. 

The prominent position taken by cases involving 
Prize Law and questions of Nationality has called for 
lawyers whose previous studies have fitted them to 
deal with the complex points raised, and there have not 
been wanting men competent to undertake the task. In 
addition to those lawyers who have been previously 
prominent only as writers on questions of Interna- 
tional Law and of Nationality, many other eminent 
men who in addition to their ordinary practice have 
found time in their leisure hours to study these ques- 
tions, have now found their knowledge put to practical 

There is a rule— and a good rule it is— that Solici- 
tors having cases set down for hearing in the King's 
Bench Division should give information at the Asso- 
ciates' Office of the probable length of the cases. This 
rule is obviously intended to prevent too many cases 
being put in the list for trial each day and so save time 
and expense to all parties. It is very curious that a 
rule so clearly advantageous to Solicitors themselves 
should not be observed, but recently Mr. Justice Shear- 
man took the occasion to point out how frequently 
solicitors neglect to give the desired information. 
There is really no excuse, for it is the practice of the 
Associates' Office to write a note to each Solicitor who 
has a case in the week's list asking for information as 
to its probable length. 

A new Society has been formed in London called 
the "Grotius Society" under the Presidency of Lord 




Reay, intended to promote the study of International Unhke the International Law Association which 
has a large foreign membership, this Society confines 
Its membership to British subjects although persons of 
foreign nationality may be admitted as associate mem- 
bers All good Avdshes will be felt for any Society 
which tends to make for unity and harmony in Intei'- 
national Law and to encourage the study of the manv 
problems which are now vexing the mind of lawyers. ' 

W. E. Wilkinson. 

' See Jfew Books and Xcw Editions, infra, p. 345. 




[vol. 36 


The Founder of English Commeiicial Law. 

If asked to name in order the four greatest Chief 
Justices of England I would indicate them as follov. s: 
Coke, the Great Oracle of the Common law ; Holt, the 
fearless and upright judge; Sir Matthew Hale, the 
just judge ; and the great Lord Mansfield, the founder 
of the Commercial law of England. I have heretofore 
lectured on three of these eminent Chief Justices. I 
purpose now to lecture on Mansfield, by some re- 
garded as the greatest of them all. My object, in de- 
livering these lectures, outside the regular course of 
the curriculum, is to set before you lofty ideals worthy 
of imitation and by so doing to inspire you with a like 
determination to succeed in a noble profession as did 
they, by unwearied application and unpausing effort. 
They excelled bj^ learning "to scorn delights and live 
lal)orious days." So only can you. Law is a jealous 
mistress and brooks no rival. 

William Murray, future Chief Justice of England, 
was born at the castle of Scone, on the Tay, three miles 
from Perth, on March 2nd, 1705. He was the fourth 
son of the fifth Viscount Stormont, a poor Scotch peer 
of distinguished descent. The family had been con- 
stant and devoted adherents of the Stuarts. He re- 
ceived the rudiments of his education at the Grammar 
School in Perth, either trudging the three miles on foot 
or riding on a pony. On the advice of an elder brother 
he was sent to London at the early age of thirteen and 
was admitted a King's Scholar at Westminster. The 
trip was madt on his pony, which was sold on his 
arrival to pay the expenses of his outfit there. He was 
consigned to a Scotch apothecary, who had l>een on thn 
Stormont estate and was a friend of the family and 
who advanced him money to enter Westminster School. 

' All flddi'cHs (Iflivcrt'il on the o|)<-iiiiig of King's Collcgp Law School, 
ovcmber 8tli, A.D. 1915. by Silns Alwnnl, D.C.L., K.C.. Dran of the 
Faculty of Law. 




ms school fehows; but his agreeable manners brio-hl 

rfeS-'" ^f '"i"^ acquirements soon u^^n hd 

be madtof a sT."^ ^V^" J^^--"'-' 'Much ma v 
oe made ot a Scotchman if he s caught vouno- " ti,:*. 

uIZ'ti:!l\T''''^'' '" thf^ca^crf vo^^ 
to geT-; -d^^f. :^^' ^^ ;-^««»-t«d to every means possil,]: 
lo get im ot his Scotch accent. By guardiii"- woll !.;« 

an nn^'owS qSlo,;.'' '""' ""'"■ ™-''' ^*"' '■™»i- 
was in Iho »,S „t rBaV'" Tr^r'Ti- ''°"■"•'■'■• 

in 1/-/. In 1/31 he Avas calecl to tho Tin,- tt- 
^n-ess at first was ^low w/r ?i . • V "^^'^ P'""" 

speech, however in 17*^7 »nn^ T"' ^ ^""lant 





[vol. 36 


iiient of Solicitor General, in Lord Wentworth's Gov- 
ernment. Pitt was Secretary of State in the same 
Ministry. This position Murray held in different 
ministries for the unprecedented term of twelve years. 
He at once became a conspicuous figure in political 
life, taking high rank as a parliamentary debater. 
When Pitt went into opposition Murray was the prin- 
cipal defender of the measures of a weak Government 
and had to bear the brunt of the vehement and severe 
attacks of that great orator and parliamentarian. In 
1 754 he became Attorney General and for two years 
was the leader of the House under the administration 
of the Duke of Newcastle. Thus facing his relentless 
and bitter rival his task was anything but an enviable 
one. An unexpected vacancy ha\dng occurred in the 
Chief-Justiceship, Murray claimed the position. New- 
castle urged all means at his command to retain him, 
seeing his departure would hasten the downfall of his 
Government. Murray would not yield. He was even 
offered the Premiership, but declined the offer. In 
November, 1756, he was sworn in Chief Justice of the 
King's Bench and created a peer by the title of Baron 
Mansfield, of Mansfield. On the day follo^vdng the 
administration w^as dissolved. 

Murray's reco/d of twelve years of c atinuous 
Sohcitor-Generalship was not only the longest, but the 
most brilliant which the annals of the nation afford. 
In the light of the pretensions on the part of belliger- 
ents as put forth by Germany in the present titanic 
struggle, on the question of neutrality, the reply of the 
English Cabinet to like pretensions, made by Prussia, 
m the reign of George II., written by Solicitor-General 
Murray, stands unchallenged as the noblest vindica- 
tion of English naval rights ever penned. The King 
of Prussia sought the adoption of the following claims, 
which would have rendered, if accepted, naval super- 
iority in times of war of little avail. They were four- 
fold :— First : That belligerents are not entitled to seize 
upon the ocean the goods of enemies, in neutral ships ; 
Second : That contraband of war, the property of 


TS^ThafLn' '"'"f^ ^ *^^^^" '"^ ^"^^^-^«' ports; 
liiird: That belligerents under any circumstances ha( 

no right to search the vessels of neutrals; Fourth 

That the legality and validity of all the procUdin ™ ,' 

.e Courts of Admiralty of England, for?herndemna 

ZlJ """^^It^ f'^' "^ ^«°^« ^y reason of an aHeged 
V olation of the duties ot neutrality, were uniustmabh 
Murray's masterly reply is thus c^mmentTupof M^ 
Lord Campbell,-" The distinctness, the precision to 
soundness, the boldness, the caution, whichXr^te 

P? er^Snr"'^^^ ^^^""^^"*« and authorise . 

aignit>,— he does not leave a tatter of the new neutnl 
code "ndemolishod. Thn. with unperishable gra^^e? 
^id the foundation on which the eternal pillars of 
England's- naval glory has been reared.'' ft s said 
Lord S towell often referred to this able vindi Jion of 
in ernational law, extolling it, in terms oJtt^e hX' 
commendation saying - his own decisions ere onh 

+««+• 1 wnen any part ot these dangerous nrp 
tentions have been re-advanced " 'Serous pre- 

claimed contraband of war The cause otM ^^ 
.^s the abnormal quantity of thi^ ^teria wh eh t: 
reaching Germany indirectly, through neutra ports 

trader It t .I'^^'i^^"^ "^ ^^^ ^S^i"«t the neutral 
the United Sfl n^'*^ ^ """"'^ ^"^P^^tic protest from 
W^aYL now^t r ^^'«"™ent and the end is not yet 
Te g eanTd f^^^^^^^^^^ "^-7 "^ International law mav 
e gleaned trom the writings of German authors 


i •! 

I fi 



[VOL. 36 

ami profossctr., wnoso doctrines }mve been woven into 

( no-' 7T- '^ ^"''"^"^ **'""^''* «« ^'-" «« aetio" 

Trpif,)]. T"",^''*'*"'* ^''^^'''' «"d historians, 

.T, H. 'fn'' '•' '' '''^"'■" "" I"t(M-national law, refers 

the following terms to Belgium and Holland, those 

Inef centres of the study of Intornational law- 

autir "•v/7/"'*P'-^;-' '^^^'^ '^'^' clistingdsled 
anthor. reflect how ridiculous it is that Belgium 

should ,)ose as the home of International law. Ju^t " 
it IS true that that law rest on a basis of prae iea fact 
so true IS It that a State ^.hich is in an abnormal S 
•on x^.ll „H.y,ta])ly form an abnormal and perverted 
concephon of ,t. Belgium is neutral. And yet me 
Innk tha it c-an give birth to a healthy system of nTer 
i.atK,nal law I will ask you to rer. ember this when 
you are confronted with the voluminous HteUun! 
T 1 ^^'^^'^^\'^'^}-^^^-- have produce<l on this subject 
Ths perverted view arises, in such small countries as 
i|elgium and Holland, from an ever presen fear of 
attack from outside. Again, there i" one coimtrv 

'S; wm 'anVi^r 'T "^ ^ p-'*-" ^^^ 

AMien It will, and which is therefore a home of barbar 
ism in all matters of International ^7 Thanks to 
iMigland, marine International law is still in thne of 
;;i^.:;;,r/'""^ better than a system of' "riXcl 

Civil rawTn'tr'T'"'"'""''"^^ "^ *^'" professorship of 
A e^^ castle, at the request of aiurrav, promised tho 
<minentl> htted for the posit on. The Duke in r1i« 

Slve tr T'?' ^"^ '^' -sons m^fdisc ed : 
he n ^Zih' t"" '" r'/"""^^-' ^ "^^" '^^^^ to have 

doet^^ mS 1?P rr'"" ^^''' ''^" ^-^P°""^ the Pan- 
stiue - AWr "^'^'' '"^^' ^"^ ««"ld not con- 

stono' «r], J?-' ^'''''™^ t^'^ ^^^at abilities of Black- 
ii res' on thP "" '" T*"^ ^' ^'^^«^^ «"d deliver Tec- 

a vic/j^^, ;n'"" "T' '" P"^'"*^ ^^*"d^"ts. This 
aavnce iiaMng been acted upon in 17r,.3, the venture 


proved most successful nn/i «„ n 

esteblishment orrprofissorshin fn f, '''"'^'^^ "' *'»' 
this renowned Unive. shtT ^ the common law at 
heneiaction of M Vi.e ' 'w^ TT "^ '''^' '"••nificent 
ductory lecture of^Mjl't';^''''' '" V''^'' '^^''^ I"tr„- 
Professorship ,vas el ted Vrr'r" *''^^ ^'"^ 
two years J^er^'t^^Zt^ll^ ^?"'' '"^^' 
LordChief Justice of pj^^Lifl, 'in '' ^^f"'''-ay as 

ffreat Lord Chief Jiist^er^l ^«f ^^."ently, for the 

the profession as ;ras the ohT ^""■^^'^^ ^'«""-'' 

flieting. His mothrende "da ;?;:';?''' "7"^* ^'- 
hey marched through Perth m i /^ '■'^^'«' ^"^ 
"1 tl e service of the Preten W / '''°*^'' ^'«^^ '^e^» 
years and had beeii c el ed FarT nf T^^ "^ *^^'^"t>' 
was said, had the promise of tl^ ^""^^^' «"^'' it 

expected new rejme Zl^^! P/emiership under ihe 
He knew the landed gentrvTsir' V'^^'^' «* ^'^'t. 
and the establish^ cfih^'ir^^^ *^« «"«toera^^^ 
'•Ptuni of the Stuarts If ' ^""^ f^^'ourable to tho 
had in his callow dlv- dLrn^rf '^^' ^^"-'^' ^^^ 
King over the water '' Yef ,',7. ' ^"*^^^^' ^''-"Tho 
General, supported the Bill W '^""^"^j^ ^^ Solicitor- 
Corpus ^c//wherthe th "I""' suspending the ^lobeas 
Edward wa's annouLef Ind IT'^"" ^^ ^^^^les 
*»s feelings, when it becamf hf. nffi^' f!?'* ^^''" '^^^"^ 
Rebellion, to take an S part if /if ^ ^"*^' ^^''' *^'^^ 
the rebel lords, some of Av^nr,? ^^ Prosecution of 
family by bloH oTa^lianc'T M ' '""""'^^ ^^'^^^ ^i^ 
prosecution against his CO" «^ t T^^ conducted the 

Solicitor-Genfrarhad cSa^^^^^^^ ^^^'°^- A^^-" ^^^ 

Lord Talbot, who stood^il ? • ""^^^ ^^^^"st J>im, 

and after eonplimenW v ^^>^'J"troduced himself 

marked,-"But nr ^? '"" ^'^ ^^« able speech re 

mother \m Zylt 'ZT' "'"' *'^ ^-d ladvTo " 


,, So loud and per^fl^f t ^ '*'"^''^^ 

^^^-y had ^^e^^^r::^^^:^^^^ -- 



f VOL. 36 

that he drank his health on certain occasions, it was 
made he subject of investigation before thi PrTvv 
Council and the House of LonJs, in the year 1753 Tho 
^idence was conflicting. The address of the SoHo tor 
General was able and eloquent. He concluded it a 
solemn asseveration that he had never gfven any 
treasonable toasts and had never consciol Ih been 
present when any such toasts were drunk He was 
unanimously acquitted by the Council. Yet accoTd 
ing to I^rd Campbell, "he was suspecte^l'' AEgh 

mIZT^^ u-^^' ^i"*^' ^' ^«« ^^^" srspectfd by M 
Majesty as being a Jacobite at heart 

tion^o/ AHnr!^ of Pelham, Murray accepted the posi-. 

trDnk. if V ^ !!''^^;rV"^'' *^« premiership of 
the Duke of Newca.««tV. His two years of Ai+ornev 
Generalship, from 17.-4 t« 1756, in defending a feebe 

nowir« ? ^'^^^ ^y ^" opponent of unrivalled 
powers of sarcasm, stimulated by bitter dislike, were 
the most unhappy of his life. The following accent 

Mas given by ..enry Fox and reads as follows:-- In 

aged Zv'rL7r ""'^ ^^ ^"^^«^' ^'^ «° ^"««- 
notice of it n. "''' f "^^^5^ '^'' ^d «^ «o^ld take 
.!! tf ' '''^,"' *"y ^^^^66 reprehend him. I sat 
near Murray, who suflfered for an hour." "On another 

trrZh whtV"''' f '^ "^^ ^^ «" expression of sav^K 
triumph which was long m every mouth. Havine for 

thplr 1^ 1 ^P""^' ^^''''' ^'' ^y^« ^^«"«d, then, fixing 
their whole power on Murray, uttered th^se wirds^n 
a low solemn tone, which caused a breathless si e„ce 
LTt l^T ?^^^^^^ ^ ^^^' ^«rds to Mr. Attorney- 

^s'at'ated 'X'f l'^^ ^^" ^^ daggers. 'MurrTy' 
»as agitated; the look was continued: the airitoHo;, 

was .nereased. 'Festus trembles,' exclaimrf Ktt 'he 

madi „'f ■"'r™ ?"""• "^y- ' He sat dow,. M„;rav 
made no reply, and a languid debate orovwl (hi 
para.ys,s of the House. - What he sXedTrl^^ he 
two years he defended the weak and vacuiatLg fl^^! 


LORD CHIEF .IVfiTlnt, ,. 


He said ho regrettod l.t 5 *f ^ '*^f""^»' '» Mav, 1750' 
^- profession^ wlnVl. )u val t -' ""^ "'"-'-' t 
that he might have boon vLot« in ^^ - ''*''^^'"^-''' >*•> 
of some remote parish n^f f. "^ """'*<'^'" «« the vioa,. 
"-thing of poJiti^reten 7f/'''* '"' '''••^''•-' to kiow 
taken by the vill^.^ elub^a ,"// 1 T^'^^y ""w-spa pe 
t^or his compan ...s on v },!.";* ''" '^■^**''^*1 to have 
;;Jr>^ and the exeiseZm ''V/;'- -aster, the apothe' 

Z'^ rival orators, Jikens vlV '''^'' "' ^'0"trasting 
fencer, in^iilnerable to L f^ "*? *" «'' accomplished 
b"t not able to ward off tiT*' °^ « '''"^«" «^^>rd 
bludgeon. *''' "^ the downright stroke of a 

H^^^^^O^r^^^i^^f^tto define. During 
bis intimate arsof ates . '^""^ ^'^th the Whig" vef 
party. ThroughoiU hi.en trT T:^^''' '^ thfTorv 
supporter of prernt'!- "^"^ P^'^tieal career he wa/« 

P-er. Thismarff^;;,rt'""-r^^^^ -*«- 
[ He also believed in the n: -"^'^^ «t' George Hf 
' ^^acaulay thus descnU hi. ?.? ^^^^»ts of Ki„' 
the father of mod^rnX. -P^^'*^^^^ ^^^^l---'He S 
to suit an order of !I" ^^r^^sm, of Torvism n^lfl i 

--« is thetiosf ^oSl r'i^' -^^^ ^^"- o C^m 
^«"?h ho professed to be ,n^^ I" the State.' i^. 
political life at the close of l r''"^^''^ '"''^"^ted wUh 
Commons, yet this dislsuZT'' "^ '^'^ "«"«« of 
Sj;^n under^^r^J^- r ^ 

^^^s without a Go"C„^'^'%,^"d for eleven wM ' 
compelled to yield an!? ^. ^^^ stubborn Kinc- . 

Newcastle anJ^^S^r "l^ ^-"-^ bel;,; 
"<^ Pm the eapaciVr^-^^^^^^^^^^^^ 
^«^- XXXVI. CX.T.-19 Ministry, ,vas 

i I! 





called "The Great Administration." Ooldwin Smith, 
in referring to it said, — ' For four years Pitt is dicta- 
tor. The House of Commons howH, almost cringes, to 
his personal ascendancy sustained by the oratorio fire, 
of which only a few flakes remain. His will is done, 
and all the money which his vastly expensive policy 
demands is voted witliout a word. 1\ as boasted 
" that he alone could save the country." War was his 
pr nacea ; he avowed himself a lover of honourable war. 
1 ^rand aim was to humble France, strip her of her 
ooiuiiies, and destroy her commerce, thereby as be and 
the tidders of that day believed, making British com- 
merce flourish. He was the greatest of War Ministers. 
He had the eye to discern merit in the services, and to 
promote it over the head of seniority and in defiance 
in routine. He infused his own spirit into all. It was 
in HaM'ke, when on a stormy sea and on a dangerous 
coast he scattered the fleet of the enemy. It was in 
Wolfe when he scaled the heights of Quebec. It was 
with Clive in India when he won an empire. No one, 
it was said, ever entered Chatham's closet without 
coming )ut a braver man.' 

What seems the roost surprising act of Chief 
Justice Mansfield's caree-, was his acceptance of a seat 
in the Cabinet and in sub.,equent Cabinet^ for a period 
of fifteen years, after taking his seat in " •*» House of 
Loids, and what is still more surprising, was his 
acceptance' of a seat in Pitt's first Cabinet, his bitter 
and hated rival. By such an arrangement, he, as Chief 
Justice would be called upon to try offenders directed 
to be prosecuted for high treason by the Cabinet of 
which he was a member. This acting in a dual capacity 
subjected him to bitter political attacks and was the 
main cause of opening the vials of the wrath of Junius, 
jnder which he suffered scarcely less tkin undc the 
lash of Pitt, when in the Commons. Certainly it was 
an anomalous position, lacking in propriety, to use no 
harsher term, to act both as prosecutor and judge. 
Still it was never charged he had, in any such ease, 
wrested the law or treated the accused with a ' ^k of 


1788, w.. I.y an S'^r'.lr.'nS'r- '756.0 
eventful life and iii«flv „„*•♦ u- "' P*^* o^ an 
Lord CamZn I'To L h1 • ' ^?™' ^'" **^« ^^'^' "^ 

li^ngland entered, in the relim nf fi.n ^ " , ^^"*'°^'"- 
upon a marvellous career of ^n^ -^ ^""'^ Georges, 
colonial expansion She was f^rhr^' Prosperity and 
est manufacturing country of fL^"V?^ *^.^ »'""«*- 
jurisprudence moulSn'^^he ri^M T^^' 7**"^ *""' 
past was not adfeted f^ 11 ! i *^ ^"V™" ^^ «« inert 
altered coSoX^th^nTf^ "" requirements of the 
inr '-fore it ThJ I ^^ *^^' '"" auspiciously open- 
saw Wiethe i„Iuncrof.iV*"*' 'i *^^ ^*^« ^«»«fi«Id 
>^ork a remX Thi^ "'^"^ 

effortsJusSTenVitll^^^^^^^ ''^'t T^^'^ ^^' 

"Great.'' The tdi^JL? ^% ?/ P?"^ distinction of 
ported in Burrow W, °^^^"^««^d are found re- 
cast, pix)nouncTb^?!fi%^T;' ^"^^''^^ ^'»d 
best law rZrtsttiat^^ Campbeh to be "the very 
In his J^dXuts the Grirniy-%Pr"^^ ^" England.'' 
due rekr^r'e^tdent^^^^^^ ^^t'^ -h^^, ^-ing 
cedent, when he fcundfhl'Jrf- ^}'^ ^^""^ ^y Vre- 
the baiis of moral rtl^t^±^ "" established upon 

ciples of justSral Wmtv H?"'Tf *" *'^ P""' 
self, "that he ouffht fTS^ ^' ^ ""^^"^ *"* ^^ ^^ ^"n- 
twe^n precedent £d I .^^'tP'f ^"*^^ «^ Placed be- 

ing extract take^frL ,J ?'■ ^^^n^^tion the follow- 
on^ SeptelerigthTo^^^^ 
ican Bar Association «fM ^ T^^'°^ «^ *^e Amer- 


of insertion,-" The moral n' ?"*^V^' °^y be worthy 

lK)pelessnes8 of attemS f f^ '^a''^' '***^3^ ^« *h« 
isprudence amrt W^f^ ^J /*"^^ Anglo-Saxon jur- 

l^e charrteTc^^^^"^ "^.^t'^^^^*^ «^^'°^h ««d of 

accident that amoi:ViS Sn^^ T"'"^ ^*- I* i« by no 

among AngJo-Saxon lawj^ers the law does 




[vol. 36 

codes come, ™* f ,*\'*fXady been made by those 


™ifh «« nrrive onlv mth the close of the day, atter its 
h^^ i buTden ha^-e been borne, and when the journey 

'' ""^^uZmatSm. Chief Justice he found the 
eonunon law of England which he had been called upon 
orrnister in a shape unfitted for the -qu^etn n 
of the altered conditions prevalent. The legislature 
had done nothing, in th. meantime to ^-PPl^ ^^.^^^^^^ 
ficiency. The precedents were few to g^^f « f ^^^ 
in cases that would necessarily arise m the future. 
Especially would this be so, among the colonies dis- 
fr bSed over the whole world, some settled by volun^ 
tary emigration, others by conquest, others governed 
by Charter, and some others transferred by Treaty ; 
and also questions respecting the affreightment o 
shiDS respecting marine insurance, respecting the law s 
of ev dence, and also respecting bills of exchange and 
promissory notes. No treatise had been published 
Spon these or cognate subjects. No judge was better 
fitted for tthe task. Possessed of a keen analytical 
mind, master of a finished and attractive style for the 
consideration of legal subjects, an ardent student of 
the Roman Civil law and possessing an intimate ac- 
quaintance of the juridical writers of the leadmg 
European nations, he entered upon the task with a ?.eal 
and determination that assured success. 

Upon the subject of evidence, his decisions were 
many, especially those which turned upon its admission 
and rejection. Of the result of his work m this depart- 
ment it has been said,-' ' He found it of brick, and left 

it of marble." , ,, , . 

The law of Insurance was mostly all his own pro- 
duction. The treatise on the subject of Insurance by 
Mr. Justice Park is composed largely of his decisions, 




as w€ll as dicta. In this connection the judgment of 
Mansfield, on a policy of Insurance, where verdict 
passed for Plaintiff, found in Carter v. Boehm,' should 
be carefully read. The defence set up was fraud by 
concealment, sufiSci«nt to vitiate the contract, ihe 
judgment is a most masterly disquisition, concise, log- 
ical and expressed in an attractive form. 

The great case of Campbell v. Hall; having been 
arguv d several times, the judgment of Mansfield, 
clearly and succinctly laid down the rules by which the 
English colonies have been governed for the past 140 

' How little regard Mansfield had for the dicta of 
judges, however eminent, was clearly shown in the 
Somersett case.* A negro slave brought from 
Africa was taken to Jamaica, where by law slavery was 
permissible, and thence taken to England. He there 
claimed his freedom. Being brought into the Court, 
under a writ of Habeas Corpus, the Chief Justice in 
delivering judgment said:— "I care not for the sup- 
posed dicta of judges, however eminent, if they l^e con- 
trary to all principle. The dicta cited on behalf of the 
Crown were probably misunderstood; and, at all 
events, they are to be disregarded. The air of England 
has long been too pure for a slave, and every man is 
free who breathes it. Every man who comes into Eng- 
land is entitled to the protection of English law, what- 
ever oppression he may have heretofore suffered and- 
whatever may be the colour of his skin." 

The many judgments of the great Chief Justice, 
during his eventful career, virtually became estab- 
lished precedents in the many commercial questions 
the Court afterwards was called upon to decide, and 
eventually came to be regarded almost as a code. 
Why add further cases? 

For the student who wishes to become well 
grounded in the principles of the profession, no better 
practice could be adopted than a careful perusal of the 

« (1766) 3 Burr. 1905. 
• (1774) 1 Cowp. 204. 
♦20 St. Tr. 1. 


jirr , 

,„a^e„ts of Mansfield as X^.d^Co^^ 
tofore referred to suea as «g^^ ^^,t„,<, legal 
Durntord and East, inere i ^^ charm 

rSers'*"'^™'^^^^^ ""* "- 

stance as m co«\P^^^;*^^^^^^^^ himself. Conciseness 
carefully revised, ^PP^'^^^Jf^gi^ characteristics, 

and clearness are ^h^ distmgu 8 ^.^^ ^^ 

Of the n^f f ^^%i^JeC^'the ontiawry of Wilkes 
on an applioa ion t^^J^'^^^ham, in referring to it, 
stands unequalled. ^^^^^ ^^"^^^^ ^ tion, force of die- 
said :-' ' Great eloo '^^^f J^ "X^^pression* of personal 
tion, just and strong but ^^^^^^^^^^^^^ to lawless 

feelings, a commanding ^^^^J ^d with the dig- 
threats, but so a««f^«?.«^",^f J^and which here, as 
nity which was natural ^^J^^^^SJ throughout, all 

^.^ntt^^roTSe-sTSlcing productions 

introducmg equitable Pn™'Pf !^ j 4;^^ Powell - 
been guided by the maxim of Mr. 3^sUce , ^ 

"^^ '? thirlftwo" yea"rt Twes^^inister Hall, m 
rctu°.I StC^-lenoh; yet durmg aU thi. per... 

«^r:Btof":r;tiort:nrr.^-Msd— ^^^ 

mile full justice has been done to h'^ «t-»''^ '', 

„v,o^,rn 'T ^pp through your whole lite one umxv 
^rto7nla."o the^oler'of the Crown at the expense 


of the Uberty of the subject. To this object your 
Noughts, words, and actions have been constantly 
Sed. In contempt or ignorance of the common law 
of England, you have made it your study to introduce 
into the Court where you preside maxims of 311ns- 
prudence unknown to Englishmen. The Norman code 
the law of nations, and the opinion of foreign civilians 
are your perpetual theme; but who ever heard you 
mention Ma^a Charta or the Bill of Bights with 
approbation or respect? By such treacherous arts the 
noble simplicity and free spirit of our Sa^on laws 
were first corrupted. The Norman conquest was not 
complete until Norman lawyers lad introduced their 
laws, and reduced slavery to a system. This one lead- 
ing principle directr -our interpretation of the laws, 
and accounts for y. . treatment of juries It is not 
in poUtical questions only (for there the courtier might 
be forgiven) but let the cause be what it may, your 
understanding is equally on the rack, either to contract 
the power of the jury, or to mislead their judgment. 

Lord Mansfield did not find that the Common Law 
of England was adapted to the wants of a commercial 
nation He did consider the Roman Civil law a 
splendid monument of human wisdom. He is tully 
vindicated in the following reply to Junius from the 
pen of a remarkably able jurist m the following 
terms,— 'But in no instance did he ever attempt to sub- 
^ stitute the rules and maxims of the Roman Civil Law 
for those of the common law of England when they are 
at variance. He made ample use of the compilation of 
Justinian, and of th" commentators upon it, but only 
for a supply of principles to guide him upon questions 
unsettled by prior decisions in England. He derived 
similar asistance from the law of nations and from 
the modern continental codes. But while he grafted 
new shoots of great value on the barren branches of the 
Saxon juridical tree, he never injured its roots, and 
he allowed this vigorous stock to bear the native and 
racy fruits for which it had been justly renowned. 

•! 'i 


* -I . 



[vol. 36 

To the further charge,— "That he introduced too 
much Equity into his Court," it may be roplied, — 
"The rules and precedents of Equity and Common 
Law have ever since been gradually moving in a com- 
mon direction, having at length attained by greater 
simplicity of procedure and by the commingling of 
principles such beneficent results, as were undreamed 
of one hundred and fifty years ago." 

We cannot close this sketch in more fitting terms 
thaL by inserting the following tribute to his memory, 
from the pen of an eminent American jurist, Judge 
Story, — 'England and America and the civilized world 
lie under the deepest obligation to him. Wherever 
•commerce ^hall extend its social influences ; wherever 
justice shall be administered by enlightened and liberal 
rules ; wherever contracts shall be expounded upon the 
eternal principles of right and wrong ; wherever moral 
delicacy and judicial refinement shall be infused into 
the municipal code, at once to persuade men to be 
honest, and to keep them so ; wherever the intercourse 
of mankind shall aim at something more elevated than 
that grovelling spirit of barter in which meanness and 
avarice and fraud strive for the mastery over ignor- 
ance, credulity and folly, — the name of Lord Mansfield 
will be held in reverence by the good and the wise, by 
the honest merchant, the enlightened lawyer, the just 
statesman, and the conscientious judge.' 

St. John, N.B. 

Silas Alward. 




"& * 


Although the necessity for the use of a seal by 
corporations in their corporate transactions has been 
reduced to a minimum since the days when under the 
old common law rule a corporation could act only by 
its seal, without which it could not enter into the most 
trivial commercial transactions or whisper its exist- 
ence, nevertheless the virtue of the wafer remains 
conspicuously manifest in the daily business transac- 
tions of modern life. So much is this the ease that it 
cannot be presume 'o state within the compass of an 
article the uses to which it is still applied, the iavv 
enabling its being dispensed with, as well as its effect 
on different instruments. 

There is a far cry indeed from the statement of the 
law by Blackstone that 'a corporation being an invis- 
ible body, cannot manifest its intention by any personal 
act or oral discourse ; it therefore acts and speaks onlv 
by its common seal. " The change has been effected by 
the exigencies of the trading and business of modern 
life Avhich have impelled the Courts to relax as much 
as is possible to them the rigidity of the common law, 
and which have caused legislation to be enacted to meet 
the demands of such exigencies. In England a corpor- 
ation may by the express terms of its constitution con- 
tract without seal: Scott v. Clifton School Board;- 
Reg. V. Chamberlain Justices;"" Tilson v. Warivick Gas 
Light Co.* Accordingly a company incorporated under 
the Companies Consolidation Act, 8 Edw. 7, c. 69, s. 76, 
is not bound to use its seal except as regards such con- 
tracts as are in the case of an individual required to be 
iiiider seal. And any corporation which has power to 
bind itself by the contract contained in a bill of ex- 
change, cheque or promissory note neef' not now ufse 
a seal under the Bills of Exchange Act, c. 5<^, Si. 

*1 Comm. 475. 

' (1884) 14 Q. B. D. 500. 

• (1848) 17 L. J. (Q. B.) 102. 

*(1S23) 4B. & c:-9G2. 

% • 







[vol. 36 

91. Both in England and in America the law now 
appears to be that unless the charter or governing 
statute requires it the act of the corporation need not 
be evidenced by its corporate seal, except where a seal 
would be required in the case of individuals. Sec. 37 
of the Companies Act (Eng.) 1867 enables a company 
as a general rule to contract without seal; it 
need contract under seal only in such instances as 
would be necessary for a private person to contract 
under seal, as in the case of a covenant or a bond. In 
Palmer ^s ComiDany precedents," it is stated that the 
said sec. 37 of the Companies Act 1867 does not extend 
to 'conveyances, demises, surrenders, certificates, &c.' 
and that as regards such, the ordinary rule prevails, 
namely that where in the case of an individual a seal 
is requisite, it is requisite in the case of a company. 
' Thus to convey a freehold propf rty, and to assign or 
surrender household property, or to give a power of 
attorney, a seal is requisite. And a seal is requisite 
for some instruments in order to obtain certain statu- 
tory advantages e.g., in the case of a certificate of title 
to shares (sec. 31 of the Act of 1862) ; in the case of a 
share warrant (sec. 27 of the Act of 1867) ; and see the 
Conveyancing Acts of 1881 and 1882 for various cases 
in which statutory incidents are annexed to deeds. ' 

In addition to its conunon seal a company may, 
under the Foreign Seals Act, c. 19, (1864), obtain 
power to have an official seal for its use abroad ; and 
under Sec. 55 of C. 89, (1862), it can authorize any 
person, as the Attorney of the Company, to execute, 
under his seal, deeds outside the United Kingdom. 
Lord Denman, C.J. in Church v. Imperial Gas Co.,* 
referring to the relaxation of the rule under common 
law requiring the contracts of a corporation to be 
under seal said : — 

"Convenience amounting almost to necessity may excuse the 
absence of the seal- Wherever to hold the rule applicable would 
occasion very great inconvenience, or tend to defeat \he very 
object for which the corporation was created, the exception has 

"8th Ed. at p. 72. 

• (1838) 6 A. & E. nt p. 861. 




prevailed; hence the retainer by parol of an Inferior servant, the 
doing of acts *ery frequently recurring, or too Insignificant to be 
worth the trouble of affixing the common seal, are established 

So also where the acts are such that "an over rul- 
ing necessity requires them to be done at once:" Per 
Alderson, B. in Diggle v. London and Blackwall Rw. 
Co: The ''accepting bills of exchange and issuing 
promissory notes by companies incorporated for the 
purposes of trade, with the rights and liabilities conse- 
quent thereon," are also excepted: per Lord Denman 
in Church \. Imperial Gas Co., supra. For contracts 
made in the ordinary course of a trading com- 
pany's business the seal is no longer required : South of 
Ireland Colliery Co. v. Waddle.'^ Statutory recognition 
has been given to this exception by the Companies 
Consolidation Act (Eng.) 19O8, C. 69, Sec. 76. 

It appears also that where a corporation has power 
by a contract under seal to order work to be done or 
goods to be supplied, and does so order but not luider 
seal, it will be liable if it accepts the benefit of the 
executed order: Halsbury at p. 284 of vol. 8 puts this 
exception as follows :— 

•In the absence of an express statutory requirement of a 
contract under seal wherever the purposes for which a corpora- 
tlon Is created, render It necessary that work should be done or 
goods supplied to carry such purposes Into effect, and orders are given 
at a corporate meeting regularly consliiuted. and having general 
authority to make contracts for worTi, or goods necessary for the 
purposes for which the corporation was created, and the work Is 
done and goods supplied and accepted by the corporation, and the 
whole consideration for payment executed, there Is a contract to 
pay Implied from the acts of the corporation, and the corporation 
cannot keep the goods or the benefit and refuse to pay on the mere 
ground that the formality of a deed or of affixing the seal is 
wanting: Lawford v. Billericay Rural Council." 

And again where a contract is executed on the part 
of a corporation and the other parties to it have re- 
ceived the benefit of the consideration moving from the 
corporation, such other parties are bound by the con- 

' (1850) 5 Exch. at p. 450. 
• (1860) L. R. 4 C. P. 617. 
' [1903] 1 K. B. 772. 

. -. «- 



[VOL. 36 

tract, notwithstanding that the contract was not made 
under the corporation seal: Fishmongers' Co. v. Rob- 
ertson;^" Australian Royal Mail Steam Navigation Co. 
V. Marzetti." 

These exceptions do not, however, apply if a statute 
prescribes a particular formality. For instance the 
Public Health Act, 1875, c .55, s. 174, invalidates any 
contract of a value exeeding £50 made by an urban 
authority, unless made under seal. This provision in 
effect fixes a limit at which corporate contracts cease 
to be so trifling as to make the seal unnecessary. If 
the charter or governing statutory law prescribe the 
use of a seal by a corporation as necessary whenever 
it acts there can be no exception engrafted upon that 
provision. A distinction is also made between executed 
and executory contracts, the latter being unenforce- 
able unless under seal. 

The exceptions to the rule that a municipal or other 
corporation can only act by its seal are in regard to (a) 
insignificant matters of daily occurrence or matters of 
convenience amounting almost to necessity, (b) where 
the consideration has been fully executed, and (c) con- 
tracts in the name of the corporation made by agents 
who are authorized under the seal of the corporation 
to make such contracts : Leslie v. Malahide.^"- See also 
Young v. Corporation of Leamington ;"" Hunt v. Wim- 
bledon Local Board;"' Smart v. West Ham Union;'"^ 
Nicholson v. The Guardians of the Bradford Union."" 

"Where a parol contract with a corporation has been 
so far performed that fraud and injustice would result 
from allowing one party to refuse to perform his part, 
after performance by the other on the faith of the con- 
tract, a specific performance of such a contract may be 
decreed, notwdthstanding the want of the corporate 
seal : Steven's Hospital {Governors) v. John Dyas.'- 

"• 15 O. L. R. 4. 

""8 App. Cas. 517. 

'" 4 C. P. D. 40. 

"" 10 Ex. 867. 

"• L. R. 1 Q. B. 620. 

" (1864) 10 L. T. 882. 




The law in Canada vnth respect to the necessitv nf 
Mnn'T'^J^' ''^^ was discussed in the (Lse of S ° 
Malleable Castings Co. v. Smith's Falls f» Mr J, 'tc^ 

r^s^TcUo^tht'n "" -^^'^ ^^"^"^^ deisL^s" W h 
coXacts of^ necessity for a seal being affixed to the 
contracts of a corporation, stating that the strictness 
of the common law in that respect was early denarted 
nTaUe?: TIhIT'^'''''' ^.^ trading^^o5:^;S^ 

l«^'^''^l'^'*^ ^^^''^' ^it^ ^ «^al would C^been 

™t.rety ,„ the s.n,e category «4,h executed Sraet" 
Vans^^kl^"^ '^'^L""^"'"''* Construction Co. ,. 

th/rf^""^ to another Canadian case it appears 
that m the provinces, outside of Quebec and S 

Satthat ofTa"*"^"*? °^ ^" importrnt^r: 

Sine must Ir T' "^ f '^"^P^"^' i" «^der to be 
omaing must be under seal and should be madp hi 
by-law: Birney v. Toronto Milk Co » ^ 

footing as do natural persons Tnnfro^fo "i 
oorporation. behalf b'y aSri.S'"aS ^0^^; 

pro Je™tr t ^e- -S^7„sfe?.'^':f;.T^^ 

11 ^4^^ -^ _ 

"M O. L. R. 22 
"51 S. C. R. 374. 
"1 O. W. R. 736. 






[VOL. 36 

is under the law the requisite mode of transacting, its 
seal is necessary:' Crawford v. Longstreet.^* 

The appointment of an agent by a corporation must 
be undfer its common seal, provided that the rule does 
not apply to trading corporations, or joint stock com- 
panies, or industrial or provident societies, nor in any 
case where its application would cause very great in- 
convenience, or tend to defeat the very purpose for 
which the corporation was created. Bowstead or* 
Agency." In Worrall v. Munn^" it was said:— 

•' It is a maxim of the common law that an authority to exe- 
cute a deed or Instrument under seal, must be conferred by an 
instrument of equal dignity and solemnity; that is by one under 
seal. The rule is purely technical. A disposition has been mani- 
fested by most of the American Courts to relax Its strictness, 
especially in its relation to partnership and commercial tranac- 
tions. I think the doctrine as It now prevails, may be stated as 
follows: if a conveyance or any act is required to be by deed, the 
authority of the attorney or agent to execute it must be conferred 
by deed; but if the instrument, or act would be effectual without a 
seal, the addition of a seal will not ren'^-'r an authority under seal 
necessary, and (if executed under a parol authority or subse- 
quently ratified or adopted by parol, the instrur "it or act will be 
valid and binding on the principal." 

Bowstead on Agency, p. 40, states the law to be, 
that where an agent is authorized to execute a deed on 
behalf of his principal, his authority must be given 
by an instrument under seal except where the deed is 
executed in the name and presence of the principal and 
the authority to execute it is given him there and then, 
in which case it may be given by word cf mouth or by 
signs: Rex v. Longnor}^ So a partner cannot bind 
his firm or other partners by deed, unless expressly 
authorized under seal to do so, except where the deed 
is executed by the authority and in the presence of all 
the parties : Ball v. Dunsterville}^ And as regards the 
appointment of an agent for any purpose except the 
execution of a deed, his appointment may be either by 

"43 N. J. .325, at p. 329. 
" 5th ed. p. 43. 
" (1851) 5 N. Y. 229. 
•* (1833) 4 B. & Ad. 647. 
••(1791) 4 T. R. 313. 




deed, by writing, or merely by word of mouth, unless 
the appointment is otherwise provided for by statute 
or by the terms of the power or authority (if any) 
under which the agent is appointed, or unless the agent 
is appointed by a corporation: Bowstead on Agency, 
p. 41. 

Where in the case of a deed of a corporation 
executed under its common seal it appears that the 
transaction thereby evidenced ie within its powers, and 
thit all the particular formalities (if ecy) prescribed 
by its constitution for the execution of its deeds have 
been complied witn, but owing solely to some irregu- 
larity which is a matter of thv-^ internal management 
of the corporation, the deed is not binding, the corpor- 
ation will be estopped from averring the defect of 
internal management as a reason for avoiding the deed 
as against any person claiming thereunder as a pur- 
chaser for value in good faith and without notice of 
the defect: Royal British Bank v. Turquand.*^ Per- 
sons dealing in good faith with the Corporation are 
entitled to assume that all its transactions are regular, 
when it is regulated by Act of Parliament, general or 
special, or by deed of settlement or memorandum and 
articles registered in some public office, are regular, 
and need not inquire into the regularity of its internal 
proceedings, what Lord Hatherley called " the indoor 
management " so that the agent's authority to affix 
the seal of the corporation to a bond or deed need not 
be inquired into by a person dealing with it: Palmer's 
Company Law, (6th Ed., p. 42), as to tho rule in Royal 
British Bank v. Turquand. 

An interesting question may sometimes arise as to 
the effect of a seal attached to a promissory note. Will 
the seal make it a specialty and consequently make it 
recoverable any time within twenty years according to 
the Statute of Limitations. In Clark v. Farmer? 
Woolen Manufacturing Co."^ it was helu that t> ote for 
the payment of money under seal is not negoxiabl<» «iid 

" (1856) 6 E. & B, 327. 

~ (183G) 15 W«nd. (N.Y.) 256. 






[vol. 3(i 

that the effect of affixing the seal of a corporation is 
the same a« M-hen a seal is affixed by an individual; it 
raises the instrument to a specialty. In the case of 
Weeks V. AiAer" an Electric Power Co. executed 
promissory notes upon which was impressed a corpor- 
ate seal. The Court said :— 

«f -17* T? **''* '"* '"'™*'' ^"■""» "^'o'^' that in the absence 
fiv ^r""" ""■' '•'* ■**' °' •"• corporalton was affixed and ol 

was Impressed, or that It wm in fact the corporate seal which thus«// ^ •"■"*"" "' '"* corporate seal upon such an 

o wh^oh *"■ ""'* '?""• '^''' "" negotlablHty-« proposltlo /as 

to which we entertain grave doubts, but which we do not t^\ 

called upon to determ.n^we think that its mrre presence unfc 

Intended to or did, affix it, was quite insufficient to ha^ve any SSt 
upon its apparent character." ^ **^ 

In the case of in Re General Estates Compant^ the 
directors gave to H. for value an instrument under the 
seal of the Company headed "debenture" and stamped 
as a deed, by which the company undertook to pay to 
the order of J. H. on July 1st, 1867, $1,000 with interest 
half yearly, on presentation of the annexed interest 
warrants, it was held that the instrument was recover- 

and nTn"/ I, ! ^^^^P?"^'' «« « negotiable instrument, 
and one of the two judges was inclined to the opinion 
that It was a promissory note and not a deed. If it 
were a specialty it would not be recoverable against 
the Company as a negotiable promissory note 
l,nM fi! f '"'''^''^ ^«m/j/Mo V. Blancheri et al» it was 
held that a private writing, described by the parties 
thereto as an "indenture," and executed under seal 
ZlT'^'V ^^•'^'"^^'1-dgment of a persom' debt; 

years did ZT'T'' x'^^""^ *^^ prescription ^five 
years did not apply. In the case of Wilsor v Gates'" 
^t jas decided that an instrument exactly worded like 
a promissory note,-but witnessed as to sVature and 

"24 Que. S. C. 265 
"16 U. C. R. 27s!^" 




ment of the Court A l/i;:' T "*• *^«^^e'ed the judg- 

^ It appears therefore tha??'"^'"^ "P^" *^« Court 
by the „,aker becomera SDeliprT''^'^ "°*« ««aled 
enee of a seal is mTco^ZZJ!^J'?u "'^ '"^''^ Pr««- 
the principle that a seal XnX^ ^^ 

and usual formality convTrte affn^* "^^^ ^' P'-^P^r 
.respects apparently a promil^or^ ^"«trument in other 
» of doubtful applioaC Kr "p- *° * "P^^^^^^ 

A corporation can execute fit ^ ^*'"** " 
««a and that was formerly tKT'''^'^."^**' ""d^'' 
oould make a promis^rv L+« w^ "^^^ ^ "^^^^ i* 
«eal is not necessary ^ ^°^'' ^""^ "<>^ by statute a 

™r^^^^^^^^ corporate seal on 

reads : dominion Companies Act also 

'Every deed whint. 

Missouri, Mia„ Ke"Sr Mi ""'''" Arkansas, 
01..0, Bhode Wand, V^t^d^ZS^i ""*""»► 

"13 U. C. R (no 
"(1»10) IflSNly. 299. 

A. J. McGiLLivR 


in <• 


VOL. MXVI. J,.T,_' 




[vol. 36 


At the first Annual Meeting of the Canadian Bar 
Association, held in Montreal in March last, a valued 
colleague in the Law Faculty of McGUl University, 
Mr. Eugene Lafleur, K.C., concluded a highly sugges- 
tive paper on " Uniformity of Laws in Canada " with 
a reference to " the movement in all great nations 
toAvards the goal which a Belgian jurist called ' the 
Universality of the Law.'" Starting where Mr. 
Lafleur left off, but confining my enquiry to the British 
Empire, I shall try to find out what this phrase, * the 
Universality of Law ' means. It is an intangible 
phantom, ever receding as we seek to grasp it! Or is 
it something earnest and actual, something admitting 
of literal and concrete expression— a thing to strive 
after and attain? Such is the topic with which I shall 
occupy your attention this afternoon. 

To speak of universality or uniformity of law in 
the British Empire seems, indeed, to assert what is 
contrary to fact. It is rather the astounding diversity 
of its laws that arrests attention. Even within the 
narrow compass of the British Isles you have four or 
five different systems in force. Going farther afield, 
you have Italian law in Malta. Dutch law in South 
Africa, French law in the Channel Islands, another 
brand of French law in Quebec and St. Lucia, yet an- 
other in Mauritius and Seychelles. You have the 
Common Law of England transplanted under every 
variety of time and circumstance to every variety 
of latitude and longitude. You have in Asia and 
in Africa underlying the law thus imported a bed- 
rock of native custom of immemorial antiquity. 
Lastly, up and down the Empire you have some eighty 
legislative bodies turning out Acts, Laws, Ordinances 
with unrelenting activity. Surely, it must be vain to 

'A paper read i>efore the Ontario Bar Association at its Annual 
Meeting at Osgood* Hall, Toronto, on January 11th, 1916. 



look for uniformity in such diversity, for harmony in 
such dissonance. The problem is, indeed, a difficnV 
one, but it is not insoluble. To begin with, we need ot 
occupy ourselves with native customary laws. Va' M ,• 
interesting as these are and regulating in part, as tl f y 
do, the lives of millions of mankind, they yet lie out- 
side the scope of our enquiry. They are, essentially, 
different types of what is called " personal law," a 
law which depends, not on allegiance, not on territory, 
but on race. They concern men mainly on what I may 
call the uncommercial side of life, in their family and 
their homes. If a Bengalee newspaper-editor libels a 
civil servant, or orders a hogshead of printer's ink, 
we may safely say that the rights of the parties will 
not be determined by the laws of Manu. So far as 
concerns the commercial and economic relations of 
modern life, tribal and racial laws are of little account, 
and every day that passes dissolves the foundations 
on which they rest. 

Restricting our research, then, to the systems of 
law within the British Empire which have a European 
parentage, we find them all derived ultimately (with 
whatever admixture of foreign elements) from one or 
other of two sources, the Common Law of England 
and the Civil Law of Rome. In Europe, the Common 
Law is followed in England and in Ireland, in Gibral- 
tar and in Cyprus, but not in Scotland, the Channel 
Islands and Malta. In Asia, it is largely in force in 
the dominions subject to the British Crown, except the 
Island of Ceylon. In Africa, it obtains in all the 
British possessions or protectorates, except Egjrpt, 
where the law is principally based upon the French 
Code, and the Union of South Africa, together with 
Southern Rhodesia, which follow the Roman-Dutch 
Law. On th*^ American continent, the Common Law 
obtains— I am speaking only of the British Empire — 
in Canada, except in Quebec, and in British Hoijduras, 
but, nominally, not in British Guiana, where the 
Roman-Dutch Law maintains a vacillating foothold. 



^ '1 





[vol. 36 

It is in force also in the British West Indies, except in 
St. Lucia, and in the far-off Falkland Islands. In 
Australasia, the Common Law is unchallenged. 

We may think, then, of the British Empire as an 
Empire of Common Law, containing within it some re- 
serves or enclaves of Civil Law, varying greatly in 
importance and extent. These reserves present, of 
course, certain family resemblances, indeed a funda- 
mental sameness, just as the systems derived from the 
Common Law are fundamentally the same. Our pur- 
suit of uniformity in Law, therefore, resolves itself 
into a comparison of these two family groups. It is 
perhaps given to few men to know even one system of 
law thoroughly ; to be on intimate terms of knowledge 
with two is as rare as to be perfectly bilingual. Still, 
just as those of us who have lived abroad learn more 
or less successfully to speak a foreign language, so 
the Common-lawyer who has had to do with the 
civilians and the civil law (and such I count myself) 
learns to know something of their mode of expression, 
and even of the thought which underlies it. If we are 
to compare two things, we must understand the nature 
of the things compared. I shall direct your attention 
to some of the characteristics of the Civil Law in 
order that we may be in a position to determine 
whether the gap which separates it from the Common 
Law is really so wide as the practitioners of the two 
rival schools are apt to suppose. To a great extent 
the gap has already been bridged by the absorption in 
Cml Law jurisdictions of rules and principles derived 
from the Common Law,* and the opposite process is 
perhaps at work, though less evidently, carrying still 
further the process of fusion. I say nothing of Con- 
stitutional Law or of Criminal Law, for there uni- 

MkhLn^La^^'tlZ'^^ l^^A '"^r=* '° "" '"'"•^J* contributed to the 
Law and tt P^^tr T°* December, 1915, under the title 'The Civil 
a p^re Ltem^f r?:;,^"^-^ ^"''^ Survey.' It should be noted that 

Evenin tht Pnf •^^'^^^''J'' ""* *" ^ '"""^^ *° the British Empire. 
i!.ven in the Province of Quebec, the law is largely English in substance. 



formity is an accomplist fd fact. It is to the Private 
Law alone that my enquiry will be directed. 

I have said that the effort to master two systems of 
law is not unlike the effort to master two languages. 
It can scarcely be that any one will be equally at home 
in both. The analogy is worth pursuing further. Just 
as diversity of language serves to keep men apart, to 
alienate sympafhy, to prevent mutual understanding, 
so it is with Law. The Civil Law and the Common Law 
has each its peculiar forms of thought, its own modes 
of expression. Partly these correspond with real and 
fundamental differences, but partly also they merely 
conceal real and fundamental resemblances. A good 
deal of the misunderstanding that exists between the 
two systems is due to unnecessary and removeable 
ignorance. This is intelligible and on one side at least 
excusable. Small wonder that the civilian st;>'^ ^ 
aghast when confronted with the strange histor ■ 
survivals which permeate your system, with your q ■ 
tinction of real and personal property, with your 
queer refinements between freehold and leasehold, con- 
ditional limitations and conditions subsequent, con- 
tingent remainders and executory interests, easements 
and profits, and half a hundred things more. This is 
pardonable, for your law is formless and unsystem- 
atised. But there is less excuse for the followers of 
the Common Law to be unacquainted with the lan- 
guage of the Civil Law. If you have not the time or 
the inclination to study the historical progress of 
Roman Law, you can at least, in the Institutes of 
Justinian acquaint yourselves with the garnered re- 
sults of a thousand years of development. Certainly 
the Institutes has its defects as a text-book. Like most 
things in this world, it might be better than it is. But 
its defects are defects which stimulate thought. I had 
lather have a student find his way through it aided 
hy Moyle's or Sandar's commentary than get a facile 
and undigested knowledge from some second rate epi- 
tome. When he has mastered it, he will know the 

I J*- 



[vol. 36 

grammar, so to say, and something of the language 
of the Civil Law. He will have learnt that a usufruct 
is the same as, and yet different from, a life-estate. 
If he takes the trouble to think, he will begin to under- 
stand what a fideicommissum is and how far it re- 
sembles a trust. Above all, it may begin to occur to 
him — what I take to be the most essential thing in 
legal education — that the terms and forms of his own 
system, even some of its fundamental concepts, are 
merely transitory and accidental; that they might 
have been other than they are; that they often might 
have been better than they are; in a word, that you 
cannot understand your own law until you understand 
at least one system of law which is not your own, just 
as you cannot know yourself until you have learnt to 
understand and to sympathise with others. If the 
comparative method of study, and the comparative 
habit of mind were generally followed and fostered 
in the legal departments of our academies and law 
schools, we should have less unthinking eulogy of this 
or that system, a freer interchange of ideas, a wider 
outlook, a surer grasp of realities. For, as I have 
said elsewhere,' and I venture to repeat it here, the 
time is past in which each system of law can be en- 
visaged as a d'stinct and isolated entity. The pur- 
poses which law must effect are the common purposes 
of civilized mankind; the new needs that arise are 
world-wide in their incidence. The brotherhood of 
mankind is not the dream of a silly or frenzied op- 
timism. To realize it may be in time to come the 
sacred mission of the lawyer, even more than of the 
diplomat or of the politician. 

I will now proceed to the main theme of my lec- 
ture, which is a comparison of the Civil with the Com- 
mon Law, with a view to establishing the principal 
resemblances and divergences between the two sys- 
tems. I approach the subject, so far as possible, in a 
spirit of scientific indifference. I am not going to 

• In the Article cited above. 


exalt the one or abase the other. At the same time, I 
shall not hesitate to pass judgment upon any defects 
which may emerge in the course of our enquiry. 

Naturally, in treating so wide a material, we must 
adopt some method of ordered arrangement; and you 
w 11 not be surprised that I do not go for this to the 
Common Law— for the simple reason that the Com- 
mon Law has no ordered arrangement. Nor do I 
resort to Napoleon's Code, which in this matter ad- 
heres too closely to the classifications of the Eoman 

T -n Z?'"'^ ""^ *^'^ ^^"^ /«^ ««* ^* «^ ^0 9te doceri, 
so I will follow the German Code and divide the whole 
held of private law into— 

1. The Law of Obligations; 

2. The Law of Property; 

3. The Law of the Family; 

4. The Law of Succession. 

1. The Law of Obligations. 

Let us transport ourselves in imagination into the 
u! ''^.^^^"lon Pleas in the year 1775 or there- 
abouts Mr. Justice Blackstone is on the Bench. We 
will ask a Serjeant at Law there present to be good 
enough to tell us the meaning of the word ♦ Obliga- 

^T^ 1 . ^"""^^^ ^^^ Commentaries on the Laws 
ot England he will answer, with an eye upon his 
Lordship, An obligation or bond is a deed whereby 
the obligor obliges himself, his heirs, executors and 
admmistrators to pay a certain sum of money to an- 
other at a days appointed."* We say ' Thank you ' 
and, returning to the 20th century, put the same ques- 
tion to a student of Law of Osgoode Hall. Perhaps 
he will say he doesn't know. Perhaps he will say 
nothing. Perhaps he remembers his Anson on Con- 
rac and will inform us that - An obligation is a 
legal bond whereby constraint is laid upon a person 
or group of persons to act or forbear on behalf of 

"■i Bl. Comm. 340. 

1 .11 



[VOL. 36 

another person or group." If that does not satisfy 
you, turn to Wood Eenton's Encyclopaedia of the 
Laws of England sub voce Obligation. You will not 
find much, but what you will find is full of significance 
— " Obligation, see Jurisprudence." In those three 
words, I find epitomised the history of a century of 
legal development, the story of the peaceful penetra- 
tion of the Common Law by the terminology of the 
Law of Rome. You are becoming civilians, you see, 
in your own despite. 

Justinian classifies Obligations as derived from 
four sources : Aut ex contractu sunt, aut quasi ex con- 
tractu, aut ex maleficio, aut quasi ex maleficio.' 
These distinctions, for what they are worth (and they 
are not worth very much), have passed into the lan- 
guage of the modern Civil Law. Here, again, you 
have borrowed. The phrase quasi-contract, if still 
unfamiliar in practice, has at least found its way into 
the text-books. You have not, however, taken kindly 
to the word delict. Still less to the combination quasi- 
delict, which had no very clear meaning in the Roman 
Law, and has been abandoned as unnecessary in the 
most modern codifications.* I shall take leave, there- 
fore, to fuse delicts and quasi-delicts under the com- 
mon name of delicts or torts. The phrase quasi-con- 
tract (though not free from objection) I retain as 
consecrated by usage. I shall speak, therefore, of 
Obligations as arising from Contract, from analogies 
of Contract, or from Wrong. The distinctions which 
these phrases represent are fundamental and must 
exist in any legal system whatever. They are com- 
mon, therefore, to the Civil Law and to the Common 
Law. They present the character of universality, for 
which we are looking. 

The Law of Contract, under modern conditions, 
is, and must be, much the same the whole world over. 
The reason why legal systems have differed from one 

• Inst. 3.13.2. 
' * Planiol, Tiait(? cUmentaire de droit civil, 6th ed. t. 2 | 827. 


another has been partly a tmI Aifp^ 
conditions, history «n7m!„ difference of nation.1 
ordination' of teUstancT^t^ ^f ' ^"^"^ *^« «"b. 
nearly the same ?S of . k ! ^^J"'' '^ ^^^^^^ i« 
cedure. To-d^ Ih. ^ubstantiye law to pro- 

mankind Ts much the "atr ""i "'^ '' ^" ^'^^^^^^ 
been known tTlook bene'rth?^, 7'° '^.^^'^ ^^^ 
tutions for the Durno.Tit u T'*^^^*' °^ ^^^^^ insti- 
intended to effect Tft ^^^v. ^^''' institutions are 
dencies were not refleetldt .if ''T'' '' «"«^ *«- 
in which more thL7nrnvn/if f 'P^'"^ ^^ ^^"t»-act. 
make law torthems^Z'"^"^^^^^^^^ 
little fundamen r d ^ ^""u ^* ^" ^^«°t« I find 
which from tTre'otffir' t''7'''' '''' «^«tems 
the Common Law of fLi T.M^''^^^°° to study, 
of South Africl Ve ca-d 'i-^' Roman-Dutch Law 
The law of ier and frT' '"'^. ^^"^ ^^ ^"^bec. 
the same in eyeJy TysTel"^^^^^^^^^ if ^^^ be, 

lost letter of ^eptJcT J^Tn '.' '''' ^^^^ '' * 
principle of //oSo^i^Je zlt^^^^^^^^^^ *^« 

lias, I believe, met with Vl ^yw'««ce Co. y. Qtronr 

at first yery deep seated ^-2' """ ""'f ^'**^ ^^^t «««n^ 
^on Law and the Ciyif ?« ' mf ^'*^"«° t^« Com- 
-|bing of the ettS u'ilr slaf Tnd d'"" '"^^« 
nit acquaintance with fV,; ^ f- ' ^^ ^""^^ °ot a''- 
^n place of the first it hl^ .h 7°'. "^ ««°«i^eration. 
^^^e ..^..^^.V/of our QueW r'^ instrument, the 
e'^ond, it speaks of thl ^ . '*'^~'" P^a«e of the 
ifferences ^are ^o dtbr' "^ *^ '''''''''■ ^hese 
'a87«)..,,°/'"'*'^"P"^^-^'^«^ they are 

•£f7t V"*"^ <1901). 31 S C R ISA 




t ^ 

I ' 



[vol. 36 

more important in theory than in practice. As re- 
gards the first, on the one hand, the notarial instru- 
ment is required seldom and in cases which belong 
rather to the law of property than to the pure law 
of contract; on the other hand, the contract under 
seal is at the present day scarcely distinguished, ex- 
cept as regards its effects, from the simple contract 
reduced to writing, and there is a growing movement 
for its extermination. The fact is that neither the 
notary nor the sealed instrument have any longer a 
raison d'etre in a world in which children are taught 
to read and write. They may survive our time, but 
tempus edax rerum has marked them out for destruc- 

As regards the rival claims of cause and considera- 
tion, I am not going to take a side. The doctrine of 
cause is a scholastic figment which can be excised 
from a code without leaving even a cicatrice to mark 
its removal.** The proof is that all the newest codes 
have made away with it. As for consideration, I am 
inclined to say of it that, though " drest in a little 
brief authority," it is indeed *' most ignorant of what 
it's most assured — its glassy essence." During the 
long course of its history, nothing of it has remained 
stable. At one time, it is a quid pro quo; anon it is 
detriment to the promisee; to-day, we are told it 
' ' need be neither a benefit to the promisor nor a detri- 
ment to the promisee, provided only that the promisee 
has furnished something sufficient in law which the 
promisor desired in exchange for his promise, and 
which the promisee was under no obligation to give." 
Competent observers of the course of events upon this 
continent think that the learning of consideration is 
in a state of flux. It may be in a state of dissolution. 
If it goes, I know no substitute for it, but to resort 

•"Toute mention de la cause des obliKations pourrait done 6tre 
cffacee de nos lois ; nHonnp do lours dispositions ne serait compromiso. 
Planiol, Droit Civil, t. 2. § ia39 ; Cp. Lee, Introduction to Roman-Duicf^ 
Laic, p. 198. 

" Professor Clarence D. Ashley, The Law of Contracts, p. 71. 

mej ...kobm:.^ ok X.W I.V bhitish empibk. 307 

ott^ pi^tr'T^^^^^^^^ as heretofore) to the intention 

tended b?the;agreeXt to h f ^^V^^^ Pa^'ties in 
of fact and capabirjp! ^•^'^^"y ^°""^ i« "tatter 

essential and SanentP^^'"'"^ ^"^^^«^' i* i« 
not so." P^^n^anent. Cause and consideration are 

in contract, corresponds whh ' Sir' W-n'-'^ ^"""^*y 
chapter on Reality of Conrel^ Yn, •,^"' ^°'°°'^ 
pcse, quarrel with art H 09 of Th. n i °xt' ^ ^"P" 
whichsays- '' Iln'.Zl .j *^® ^^^^ Napoleon 

further question whpVr ?'^'"'* ^^'^ ''^'- "" The 
a vice arrvoX^ofdabL f^^*^^ ^^ «««^ 

missioners seem LTave ^^pos'ed " ' "^f'^' ^°"^- 
It has great practica imnn.r ' ^-"""'^ ^^«^°^««^y- 
rights of third parties '^ ^°r '° '^^"^^ *« «'« 
-atter, the term'o lo^y o? ht t^o '' l'^^ ^"'^^'^^*- 
identical; the substantia lo ^ systems is not 

the same' resu ts B„rthe diff'^ ""' ''""^'« '^^^ ^o 
are, are more lik^lv to V^ deferences, such as they 

to the influencrofa misLdiw' ''f "^ *^^°^-^' - 
difference in the mnr^r^ ^^.^°^^''^' *^an to any 

^^ystemsyou^mnrSd^rf^^^^^^^^ ^^-" I^- 

you have grown accu^tomedl-suhf. ''''*' "^^^'^ 
representation, or undnp iinfl .^ innocent mis- 

think, find the'se topis handl?r":;^"' ^°^ ^^"' I 
Error. In this depaHment f J 1 """^Z' *^^ ^'^'^ «^ 
i« vague and unsarfacTorv in h fl '* P'^^^^*' «^"«h 
ters were really thought ou[ h P '^'*'°^^' ^ °^^t- 
Civil Law cou^d sca^Ly fa^f toT°^°°^"^""^*^« 
conclusions. ^ '^ ^"^ ^^^^ve at identical 

f ;. L^Jd^'Du^jrir'^/r^^^^^ (ms). a. c. a, p * 

^"- ""^ "' ^'•^ «-•- ^^-'e « to the s„„e effect. 





[VOL. 36 

The grounds of illegality in contract are much the 
same in all irodern systems. Peculiar to the Civil 
Law is the rule which prohibits a contract with re- 
gard to a future succession; " e.g., a contract to leave 
property by will to the promisee. The policy of this 
rule is questionable." On the other hand, English 
Law, by a peculiar process of ^ . ^lution, has arrived 
at a condemnation of so-called marriage brocage con- 
tracts." In other systems, they seem to be permitted. 

If you speak to a civilian of the ' assignment of 
choses in action,' he will not understand you, nor y -^^ 
him, perhaps, when he talks of ' cession of actio:.' 
But the subject-matter is the same, and the pertinent 
rules of law not very different. 

Can a third person take advantage of a contract 
made for his benefit to which ho is not a party? In 
English Law, in the absence of a trust, certainly not. 
The same negative answer was expressed in the 
Roman Law maxim ' Neiyio oUeri stipiilari potest.' 
But Scots Law recognises the jus quaesitum tertio," 
and in the modern French Law, according to one of its 
ablest commentators, the maxim is a dead lei,ter." 
The Canadian French Law seems to stop short of the 
extreme conclusions of the French Civilians." In 
South Africa, I am inclined to think, the rule ' Nemo 
alteri stipiilari potest ' still holds good,"* 

In the Common Law, the analogies of Contract 
(quasi-contracts) are few in number. You have your 
action for money had and received, which rests upon 
the fiction of an assumpsit. But you are, as a rule, 
rigid in your refusal to allow compensation for ser- 
vices rendered without previous request. The actio 

"The rule dates from Justinian, Cod. Cf. C.N. art. 1130; 
C.C. (Quebec) art. 1061. 

"Planiol, Droit Civil, t. 2, §§ 1013-14. 

"nermann v. Gkarksic&rih (1905), 2 K. B. 12.3. 

"Dunlop Pneumatic Tyre Co. v. Selfridge (1915), A. C. at p. 853, 
per Viscount Haldane, L.C. ; Stair, Institutions of the Law of Scotland, 

" Planiol, t. 2 S 1211. 

"See Belanger v. Montreal Water A Power Co. (1914), 50 (Can.) 
S. C. R. 356. 

"Lee, Introduction to Roman-Dutch Law, p. 212. 


negotiorum g^^storum, by which I can recover an in- 
demnity for unsolicited services, is unknown to you, 
and the principle ' neminem cum alterius detrimento 
et injuria fieri locupletiorem ' *• leaves you unmoved. 
According to the Civil, the Good Samaritan has 
his action for an indenimiy against the man who fell 
among the thieves. According to you, he must look to 
his conscience for his sole reward. Further, even if 
the victim of the robbery had expressly promised to 
compensate him, the good man would still be without 
red-ess, for you would have to advise him that the 
consideration for the pr mise was past, and that the 
oil and the wine were not * moved b>' a previous re- 

Our next chapter is the Law of Delict or Tort. If 
you have ever looked for it in a codified system of 
Civil Law, you have probably failed nci it, and 

not unnaturally, for it is not there. You may have 
seen a work by Mr. Edward Jenks and others entitled 
" The English Civil Law in the Form of a Code " 
(the word Civil Law is here used in contrast to 
Criminal Law). A section is devoted to the Law of 
Torts. It includes some three hundred articles. Turn 
next to tho French Code, which our Quebec Code fol- 
lows. The whole topic of delicts and quasi-delicts is 
dismissed in four or five articles." What are we to 
make of this astonishing diversity? Must we say of 
the Law of Civil Wrongs in the French system what De 
Tocqueviile said of the British Constitution, '' elle 
n'existe point "T Without going to the length of such 
a paradox, we must allow that in French Law and in 
Ca -»dian-French Law, the subject of Torts remains 
uncodified. The whole topic has been relegated to the 
tourts. It IS matter of Jurisprudence. I suppose 
hat the main categories of actionable wrong are by 
this time pretty well determined. But the vague 
generality of art. 1053 of our Quebec Code, so it seems 

" Digr. 50.17.206. 

"C. N. 1382-6; C. C. 1053-6. 

» 1 1- 
i I ., 



[VOL. 36 

to me, leaves the edges of the Law of Delicts very 
ragged. " Every person," it runs, " capable of dis- 
cerning right from wrong is responsible for the dam- 
age caused by his fault to another, whether by positive 
act, imprudence, neglect or want of skill." If you are 
displeased with niy conduct, you have only to charge 
me with " une fauto," and I am already half con- 
demned. The criterion of civil liability (to borrow 
Selden's famous phrase) becomes as variable as the 
length of his Lordship's foot. 

II. The Law of Property. 

I have spoken of some of the differences between 
the two systems which confront the student in the 
field of Obligations. I pass to the Law of Property. 
Here the differences seem to be radical and funda- 
mental. You have inherited from feudalism the dis- 
tinction between real and personal property. To the 
Civilian, it is unknown. You have your doctrine of 
estates. He has notMng of the kind. You retain at 
the bottom of your system a primitive theory of mort- 
gage. The hypothee of the civilians is derived from 
the maturity of the Roman Law. You distinguish legal 
and equitable ownership, and the conception Equity is 
as clear and well-defined with you as the conception 
Law. The civilians seem to experience an insurmount- 
able difficulty in understanding equitable ownership, 
and as for Equity in general, the author of a popular 
text-book on Canadian-French Law exclaims:— 
" Equity— cela signifie tout ce que Ton veut et aussi 
pen qu'onle desire."" 

I have given you a few of the antinomies between 
the two systems. Certainly, they are numerous and im- 
portant. It would be unwise to make little of them. On 
the other hand, they are not so formidable as they look. 
Partly, they are merely matter of expression. Partly, 
they belong on your side, and perhaps on theirs 
to traditions which have nearly spent their force. 

" Lemieux. Les Origines du droit Franco-Canadien, p. ff^. 




emphyteusis have always IZ^rl, ■ Tl """'™' «"<" 
i» fact if not i„ na„nnjT" "? "*?"' '""^ ''""«» 
a term of years if T, v , " . I "''''loary lease tor 

possess, which ea„ bo mart"' "■^''' ''°'"'"" « "«'" '» 
from thi lessor To,, win ■!.*'°.°'L *«'""'' purchasers 
in our Code as a contTai '°'^''^' «»<' "•« lease treated 
"l.i» is merely iraditioua'a"^ ""' "' " ™' ■■'«'"- ""' 
affect the fact hat th. l ""^■"■8""™' "■'''<^'' does not 
'MP i„ landToule'r U;?: TJZ' "'-^ "' °— 

III. The Law of thk Family. 

The phrase Family Law admits of ^iff^ , 
cations. It is emnloviil ,-^,+1. "™"^ ^^ different appli- 

what you have^omjfo f!.^'^*" ^«^« *« ^^P^ess 
RelatiLl The Trench'rL ' "^"^ T' *^^ ^°^««tic 
this topic from the an WIk' f^^i'^'^^ distinguishes 
method! tio^ghlnt^tutT "' '"P"^^*^' «°^ *hi« 
ences. Perhaps no^g It^'heT""^ T ^^"^- 
a first sight, so strangelyt acode 1 r^"""'^ •''^'"' 
^iven to the Law of Persons TTnl u^^ P'ommence 
training in Roman T«wl °^®^' ^® ^«s had some 

occasion to tk WmselT wLTT. "'7 ^^" *^^^'« ^^^ -« 
every Codp T Kfr ^ ^* *h® P^^ase means. But 

and ^ou wni find S; 'al^ " 'J""'^ '^ *^^ -^^ct 

ters much that seer'unfS^^ Tl 'T^r °^^*- 
will find a trreat dPAl oK^?* * . ^•. ^^ Particular, you 

ment of tutors Yofrav^^^^^^ 
Guardian and Ward hiif If ' ?T'' ^^"^ ^^^ of 
|ar.e part in thr^:;Ve:eryrari?^e^"'' *^ ^^^^ ^ 
the testamentary guardian If t. i^ ^° ^*'"'' ^3^^*^™' 
'ame time trustee TsTl; ' ^^P^"' *° ^^ «* the 







[VOL. 36 

ing the administration of the tutor. In Holland and 
in Germany the functions of control were vested in 
Boards of Magistrates known as Orphan Chambers. 
The institution seems to have done its work satisfac- 
torily. In South Africa the task of supervision is 
now entrusted to the Master of the Supreme Court, to 
whom the guardian gives security and renders ac- 
counts. In France the Orphan-Chamber was, I be- 
lieve, unknown. In place of it, some of the * Cus- 
toms ' attributed the right and duty of control to a 
collection of relatives summoned ad hoc for each occa- 
sion and known ias the family council. The framers 
of the Civil Code, rather unhappily, made this custom 
a rule of general application. According to the Code 
Napoleon guardians must in certain events be ap- 
pointed by the family council. By the Quebec law, C. 
C. art. 249, " all tutorships are dative; they are con- 
ferred, on the advice of a family council, by a com- 
petent court or by any judge of such court having civil 
jurisdiction in the district where the minor has his 
domicile or by the prothonotary of such court." By 
art. 251, ' ' the persons to be called to a family council 
are those most nearly related or allied to the minor 
to the number of seven at least and taken, as equally 
as possible, from both the paternal and the maternal 
line;" and by art. 253, " in default of relations of both 
lines, the friends of the minor may be called to form 
or to complete the number required." Such are the 
provisions of the law. What is the practice? The 
family council, I am told, is as often as not, in default 
of relatives, made up of law students or any casual 
persons who may be found about the courts. The in- 
stitution is, in fact, unsuited to modern conditions of 
life, and affords little or no protection to minor chil- 
dren. In this respect, at all events, there seems to be 
an unhappy uniformity between the laws of Quebec 
and those of the other provinces of Cana ' " 

The status of married women is an interesting topic 
for discussion. In the later Boman Law marriage 
made no change in a woman's contractual or proprie- 


tary rights. The barbarian invaders of the Empire 
took a different view and differed between themselves. 
On one view-it was that which finally prevailed in 
the Common Law-the woman brought herself and her 
goods and chattels as a present to her husband on 
marriage Accordmg to another view-it was that of 
the Franks and has passed into the Canadian-French 
and Roman-Dutch Law-marriage effected a partner- 
ship between the spouses with community of goods 
In the event of the death of either of the spouses, the 

iTndt f? *'^ ^""^'^^ ^""°^ *^« marriage has been 
iinder the admmistration of the husband) is divided 
into equal halfs, one half going to the survivor, the 
other half going to the children or other heirs of the 
TTu^^ I^ England, the Common Law rule was 

PronSf f f'T*V^ r ^^^2 ^^ ^^' ^«^"«<^ Women's 
Property Act, which has been followed, I think, m all 

the Common Law provinces of Canada. Quel . re- 

R,? fw i l ""^ ""^^'^^ ^^^ '««^^« to disturb it. 
the sarT"^^, ^' reasonable and proper to give women 
lut of^f ?!T"^' P'^^^r^ «f contracting themselves 
out of It as they enjoy in South Africa, viz., by re- 
serving to themselves the free control ov'er thdr pro- 

tSpTac:"' '''' ^"^'^"^"^ ^^ '' - marriage had 
IV. The Law of Succession. 

.JV^^ ^T o^Succession (to which I now pass), 
you have adopted the policy of the English Land 

o?rf ' ^.'K'^ '^'^- '^^' ^^<^'« ««*«*« of the de 
eased vests for purposes of administration in the 
testamentary executor or in an administrator ap- 
HmTtpd h/.,^ ' Court whose liability to creditors is 
limited by the extent of the assets. The Civil Law of 

consorts" pSl^^JTonThP^S ^- "''SISTS) 'the immoveables which the 
fall to ther^^^H^^ u ^"y.^''«" the marriage is solemnised, or which 

tract^th^re a« „o sucHSt. i^^ tt^ l^^f S u"ti;^7fHr •^"■ 
Lee, Introduction to Roman-Dutch I^w', p. m; 
VOL. xxxvr. C.I..T.— 21 


■ •r 





[vol. 36 

Quebec (in common with the French LaW and the other 
civil law systems of the continent of Europe) retains 
the extraordinarily primitive institution of universal 
succession, which renders the heir answerable for the 
debts of the deceased, unless he protects himself by 
claiming benefit of inventory." By this means, he 
obtains circuitously what the English Law gives him 
as of course. In the Union of South Africa (another 
civil law jurisdiction), the whole law of inheritance 
has gone by the board. The heir, so called, is merely 
the residuary legatee, entitled to receive from the exe- 
cutor or administrator so much of th^ estate as re- 
mains over after payment of debts and legacies. 

I have passed in review a number of topics with a 
view to illustrating the resemblances, and the differ- 
ences between the Civil and the Common Law. Some- 
times I have indicated my opinion that the differences 
are more apparent than real. Sometimes I have sug- 
gested that the differences are likely to disappear. 
Sometimes, again, I have pointed out the differences, 
but made no attempt to conciliate them. I do not know 
what impression I may have produced upon you. If 
you are tolerably familiar with both systems, you may 
perhaps attach more importance to their essential 
unity than to their unessential diversity. If, on 
the other hand, you are thoroughly conversant with 
the one system, and have not given much attention to 
the other, it is the difference, rather than the simi- 
larity, that will strike you. If that is your .feeling, 
you may think that I have not gone far towards estab- 
lishiag my initial thesis, the Uniformity of Law. Let 
me, then, lay before you a few propositions which 
either summarize or grow out of my argument. So 
far as I have not dealt with them, you will be able 
to develop them for yourselves. They are the fol- 
lowing: — 

Ist. The laws of the Empire are not as hetero- 
geneous as the layman may suppose. They fall into 
two principal groups. 

•C. C. Art. 736. 


2nd. Tlie differences between these groups are 
largely differences of expression and of form, not of 

3rd. The conditions and objects of all modern 
systems of Law are similar and tend to become iden- 

4th. This tendency exhioits itself in uniformity of 

5th. Existing differences are to some extent a 
legacy from procedural differences in the past. They 
do not rest upon fundamental necessity. 

6th. History is the hand-maid, not the mistress, of 
Law. Circumspect, prospect, not retrospect, should 
be our guiding principle. We live in the twentieth 

I might say more, but I have said enough. I will 
only add a few words in conclusion. ** What are 
you after!" may be asked of me. ** Do you want 
a Code for the British Empire?"— Well, no. I hesi- 
tate before that conclusion. As things stand at pre- 
sent, if you made a uniform Code for the Empire 
to-day, you would have eighty legislatures tinkering 
at it to-morrow. Besides, I am no advocate of 
Teutonic methods. We are a federation of free na- 
tions. Let each section of the Empire keep and make 
its own law as it pleases. At the same time, there is 
no need to maintain a wasteful and unneces^sary 
diversity. There are many branches of law which are 
the same in substance for the whole Empire. There 
are other parts of the law in which uniformity is de- 
sirable and attainable. If, after much labour, any such 
topic has been codified by the Imperial Parliament, or 
by one of the Dominions, we should consider very 
earnestly whether we cannot adopt that codification 
verbatim, instead of doing the work over again for 
ourselves, and perhaps doing it not so well. But we 

" Ample illustration will be found in The LegUlaiion of the Empire, 
JS9li to 1907. (Butterworth & Co., 1000), reprinted from the Journal 
of tlip Societj of Comparative Legislation, and in the annual rammariea 
contained in that periodical. 



[VOL. 36 

have a long way to travel before we shall be ready 
for an Imperial Code. We need to be educated up 
to it. We need a legal education which will be com- 
prehensive, penetrating and practical — comprehen- 
sive, because it will not limit its vision to the narrow 
range of a single system ; penetrating, because it will 
penetrate beneath the surface and quarry in the mines 
of understanding; practical, because it will aim at pro- 
ducing lawyers who will be good citizens, and at mak- 
ing of the law not a chaotic agglomeration of survivals 
from the past, not a delicate work of art, too subtle 
for common handling but a rule of right, consonant 
with the instincts of lonest men, subserving the gen- 
eral convenience, promoting the general happiness. 
If lawyers were trained on these lines, we should have 
better laws and better justice. The issue is one of 
Imperial concern. There should be a School of Law 
in the metropolis of the Empire. Its functions would 
be, not to lecture to a bench or two of light-hearted 
students, but to study au fond the problems of juris- 
prudence and of legislation. It would act as a receiv- 
ing and distributing station of legal information. Its 
activities would be at the service of every government 
throughout the Empire. It would collect (if not too 
late) a library of the law books of the Empire not very 
inferior, let us say, to the collection of our books to 
be found in the law library of Harvard or of half a 
dozeji other law schools in the United States of 
America. It would take in hand the task of codification, 
and produce a redaction of our law, which might be en- 
acted in various parts of the Empire, as convenience 
and opportunity might suggest; which would present 
it to the foreigner in a form which he could under- 
stand and might be willing to adopt, instead of re- 
sorting, as at present, to France, to Germany, or to 
Switzerland for a model. All of this and more mi^ht 
have been undertaken by the Inns of Court in London 
any time these last twenty years. It has not hem 
done. I do not suppose it will b^ done, unless the 

1916J ^OHMXXV O. ...,, 3HX.SH ..„„,. 3,, 

^^^'^Z:rt:^i:^^^^^ -' ^t is said, the. Will 
our part in Canada Bv 5' ''^'' ^"^ ^« ^^7 do 
our Law Schools, Vnh^liulT n'^'T^^'"''' ^^^^^^en 
Government DepartSr w! ' ^/ Associations and 
the form and subsS^Te ^f T. ? ^' """'^ *° ^P^^^e 
speak, not a babel of eonf«s J ^^\^''^ *« make it 
of right reason anMSrS'e'"* one language 

McGill University. 

R. W. Leb. 



[VOL. 36 


English Decisions.' 

The K. B. Law Reports for January contain an 
unusual number of cases requiring notice. 

Alien enemies — Prerogative of the Crown to 
imprison. The King v. Superintendent of Vine 
Street Police Station,' is a decision of a Divisional 
Court upholding the prerogative right of the Crown 
to imprison an alien enemy; and that the Court 
has no jurisdiction to interfere with the exercise of 
this prerogative. Also that an alien enemy resident 
in England who, in the opinion of the Executive Gov- 
ernment, is a person hostile to the welfare of the 
country, and is on that account interned, may properly 
be described as a prisoner of war, although not a com- 
batant or a spy; and that it is settled law that no writ 
of habeas corpus will be granted in the case of a pri- 
soner of war. This is one of those cases now arising 
111 England which arc causing a flutter in what may be 
called the dovecots of freedom. Doves, however, per- 
tain to peace rather than war. And so Bailhache, J 
says (p. 275) :— ' " 

" ^?*P'y Impressed as I am with the sanctity of the Ub-rty of 
the subject, I cannot forget that above the liberty of the Bubject Is 
the safety of the realm, and I should be prepared to hold, as at 
LT«Mi!?''H''^;.*^*i ^^""^ '^' Internment of an alien enemy is 
tltiln „, t^ *^t Executive Government, charged with the pro- 
lea m and fh P • '*'"'■*'"" '" *^" *°*«'"^«ts of the safety of the 
a£Tn ^^ J'^^^^«™'°ent thereupon interns such alien enemy, the 
?o w« Jp , Government in so doing is not open to review by the 
courts of law by habeas corpus." 

a reLuJ^c^iw *''* ^''**<"' ." *« ">«>«« this feature of the C. L. T. 
"ions nLw^n 7^ consc^ntious review of recent English deci- 

advTse? of JLnfn .rr ''^'- ''" "«» *=«'" important for them to be 
f^^^CoLZT^' A^t^'.J^"^- ^'"^' ""^«'' *»>« English Work- 
aZJtZrr ' "' ""^ "^onri^red as cJtning under 

' [1916] i K. B. 268: 85 L. J. (K. B.) 210. 

'7 7"'""' '"^ "^^^^ ~« 319 

tK>ns7^d •di:co;;r'^^^^^^^^^^^ ^-t that the i„ve„- 

he exjsting means of eonZTo.r'\ «"^ ^^P^^ially 

^he fields of possible hostTrnvSir ^^^" «« widened 
fmit on the earth, in the at *^^'' ^« «««^«^ly any 
! IS possible to pu upon thp ' '" *^" ^^^ers which 

"iterance of the Court of 71 T^ "" aithoritative 
''»'y of translating eWdenct^ff^' '■ ^"«'»<' on fte 

•flOift] i,,f jj ,^ •*" "® not convicted of 




[vol. 36 

crimes, and do not forfeit life or liberty, except wtien tried under 
the safeguards so carefully provided by the law." 


The Court further held that if the foreigner pris- 
oner is defended by counsel, the evidence must be 
translated to him unless he or his counsel express a 
wish to dispense with the translation and the judge 
thinks fit to permit the omission, but 1 o judge should 
not permit it unless he is of opinion that the accused 
substantially understands the nature of the evidence 
which is going to be given against him. 

Slander — Absence of special damage — Words im- 
puting moral misconduct. Jones v. Jones* is a deci- 
sion of the Court of Appeal, which, unless overruled, 
will take rank as a leading case on the law of slander, 
as distinguished from libel. The Court unanimously 
decides in it that an imputation of iimnorality against 
a_ person, though he be engaged in a profession or oc- 
cupation in which a good moral character is specially 
requisite, is not actionable per se, i.e., without proof 
of special damage, unless the imputation itself be con- 
nected with i\w person's occupation or employment, or 
the person slandered be a clergyman holding clerical 
preferment or employment of temporal profit, in which 
latter case such imputation of immorality is held ac- 
tionable per se as being a cause of deprivation or deg- 
radation. Therefore, the headmaster of a council 
school, against whom an imputation that he had been 
guilty of adultery with a. certain woman was made, 
but without any relation to his position as a school- 
master, was held to have no right of action without 
proof of special damage. Swinfen Eady, L.J., de- 
livering the judgment of the Court, says (pp. 358-9) :— 

" The plaintiff claimed that his case fell within the first limb of 
the passage, so frequently quoted, in the Judgment of the Court of 
Exchequer delivered by Bayley, B., in Lumby v. A»day':—' Every 
authority which I have been able to find, either shows the want of 
some general requisite, as honesty, capacity, fidelity, etc., or connects 

' riOlfl] 1 K. B. .^1: 85 L. ,\. (K. «.) 388. 
• 1 Cr. & .T. S05. 



tne Imputation with »i,- • i . •"««». j^j 

held applicabir itTs „oT '"" '" *»"<='' "emiore ,t r^'n"'" 

.n. no, ... S„».;' »« «-...,.,„„ „., „t? ILTUSr 

Then after referrino- +« *u ' 
(p. 361):- ^'""^ *« t^e authorities he says 

t^on " of adventure. AdZiral Shl.J'^T''''^ ^^^^^'•«- ' 
^^M.. . CV is a deeiSf SfeS: J.^S!!' 

CI) affirms, as settled law, that- 

stean.8hiror*ofTr o' conduct amounting to withrtro , 





[vol. ;M) 

fulfilment of the contract In the only way In which fulfilment Is 
contemplated and practicable li ao Inordinately postponed that Its 
fulfilment when the delay la over will not accomplish the only 
object or objects which both parties to the contract muBt have 
known that each of them had In view at the time they made the 
contract, and for the accomplishment of which object or objects 
the contract was made;" 

(3) expresses a doubt — 

" whether delay due to a cause contemplated and provided for by 
the charterparty, even though the delay Itself Is protracted beyond 
what might have been expected, ever amounU to frustration of the 

and, also' whether the doctrine of commercial fnistra 
tion ever applies to a time charterparty.' 

(4) holds that, where a charterparty expressly pro- 
vided that in the event of war affecting the working 
of the steamer chartered, the charterers had the option 
of cancelling the charterparty, cancellation was tlieir 
only remedy, although it might be that the charterers 
had put it out of their power to exercise that reniody. 

Sale of goods— Outbreak of war while contract still 
executory— Effect of war on contract. The judgment 
of Scrutton, J., in Aruhold Karherg <& Co. v. Bbif^ie, 
Green, Jourdin & Co., noticed at some length in our 
number for August last (vol. 35, p. 685) has been 
affirmed by the Court of Appeal.' 

Breach of promise of marriage— Ac, n against 
executor of promisor — Special damage. Qmrh v 
Thomas^ arose out of an alleged breach of promise ot 
marriage made by one Arthur Thomas to the plam^ 
tiff. After the writ was issued, but before delivery ot 
the statement of claim, Arthur Thomas died, and the 
action was continued against his defendant the ex- 
ecutor to recover as special damage the loss of the 

'By a time charterparty is mean't when a '««««\.'«„;i'";*Tite''r^ 
a certHin period of time, as distinguished fmm a " voyoge ehnrte^ 


• [19161 1 K. B. 495. 

• 11916] 1 K. B. 516. 


|)laintiff'8 business as a milliner M-hich sljp alleged she 
lias given^up on the faith of the promise of marriage 
It was stated by counsel that the suggestion that 
special damage could be recovered against an executor 
111 such a caise as this was first mooted over 100 years 
ago in Chamberlain v. Williamson,"' and has been re- 
ferred to in subsequen cases, but no such claim ap- 
pears to have been actually made until the present 
action, though circumstances giving rise to it must 
nave existed in many cases. Two of the three judges, 
however, decide the case upon the ground that even 
if the action would lie, the damages alleged as special 
damage, did not arise out of the breach of the con- 
tract to marry. Swinfen Eady, L.J., however, says 
(pp. 525-7) :— 

" An action for breach of promise, where no special damage Is 
alleged, does not survive against the personal representatives of 
the promisor. ... I have grave doubts whether the action will 
He even If special damage be proved. . . . There Is no case in 
which such da> ?e has been actually recovered. The action to 
retover damage jr breach of promise to marry Is an anomalous 
one. and as si, actions have been known to the law from a date 
wterior to 1( '. and damages have never yet been recovered After 
the Qta»h of the promisor, the Court would probably take the view 
that the action ought not to be further extended by Judicial decl- 

Building contract— Work not completed— Right to 
m on a quantum meruit. H. Dakin <& Co. v. Lee" is 
a decision of the Court of Appeal affirming a Divisional 
Court, to the effect that where a builder has supplied 
work and labour for the erection or repair of a house 
under a lump sum contract, but has departed from 
the terms of the contract, he is entitled to recover for 
his services, unless (1) the work that he has done has 
been of no benefit to the owner; (2) the work he has 
done IS entirely diflferent from the work which he has 
eontraetod to do; or (3) he has abandoned the work 
and left it unfinished. The following extract from the 
judgment of Lord Cozens-Hardy, M.R. (p. 578), ex- 
presses the view of all the judges;— 

"2 M. & S. 408. 

" riOUt] 1 K. B. 566. 






[VOL. 36 

" It haa bc«n argued before us that, in a contract of this kind to 
do work for a lump turn, the defect In aotne of the ttema in tho 
apecitication, or the failure to do every Item contained In the apecl- 
flcation, put! an end to the whole contract, and preventa the 
bullderi from making any claim upon it; and. therefore, where 
there la no ground for presuming any fresh contract, he cannot 
obtain any payment. The matter has been treated In the argument 
as though the omission to do every item perfectly was an abandon- 
ment of the contrnct. That seems to me, with great respect, to h-> 
absolutely and entirely wrong. ... To say that a builder onti o^ 
recover from a building owner merely because some item of the 
work has been done negligently or Inefficiently or Improperly Is a 
proposition which I should not listen to unless compelled by a 
decision of the House of Lords." 

Shares in limited companif — Voting poivers re- 
tained by mnrtfjagor — Ma^'hUory injunction against 
mortgagee. The only <\i . in Ch. Laiv Reports for 
January requiring noti' • I.ere is Puddephatt v. Leith,'' 
in which Sargant, J., granted a mandatory injunction 
to enforce an agreement by the mortgagee of shares 
in a limited company to vote in accordance with the 
\vi8hes of the mortgagor, for it was one, as he say.s 
(p. 202), in which " there is one definite thing to l)e 
done about the mode of doing which there can be no 
po8.sible doubt." 


Negligence — Injury to patient in hospital — Care- 
lessness of nurse. Lavere v. Smith's Falls Public Hos- 
pital,'* was a case in which damages were claimed by 
the plaintiff for injuries received in the defendant lios- 
pital. After an operation performed on her she com 
plained of a pain in her foot, and on investigation it 
appeared that she had been burned by a hot brifk wliicli 
remained in the bed after her return from the operat 
ing room. The Ontario Appellate Division hold that 
as the defendants' express contract with the plaintiff 

" [1916] 1 Ch. 200. 

"As most of our subscribers have ready ncc<>88 to the Canndinii 
Reports, it is not (leeroed necessary to review the Canndinu cases in 
the same detail ns the English. Only tliose which seem of sp'einl 
interest and importance will, therefore, be. notice<l. 

» 36 O. L. R. 98. 

™»»e« the „,„„„ri,io,; i;.,,;;,i:" '"'''"■"•'" ""■ 

for discovery tt i-wf ''/i'".":"'* ™ «™»'"i«ti"i.» 

wiBtoverj, me (lictum of Riddell T ;« oi.- 
r/wjo/j Trust Co Ltd •» fi,„f ""»"*'". J-, in AAojt v. 

»mnothi„K ete a ;.Z f V" '" '™J'"«"i'>" with 

- ^^^^^^i^:^ - 

"arranty is not r«la^r,l , ' '.■" ""P""^"" that the a, done whi^h Zdd h'^l"\^ -^"'^ '"o"' "P™ 
action will lie forbreach'ftl^. I "l ^T'' """l "• 
if the animal tn^n'r fol'llZr ''' "' ^'"'""''' 

f.'^enic^ny v. Canadian ZttL~R WcX:!" f 


.» O. L. R. 206. 
"25 W. L. R. 65B. 



[vol. 36 

taining of the damage, yet, as sub-sec. 4 of the same 
section provides that nothing in the Act shall relieve 
any company from, or in anywise diminish or affect, 
any liability or responsibility resting .upon it under 
the laws in force in the Province in which liability or 
responsibilitv arise, for anything done or omitted to 
be done by such company, or for any wrongful act, 
neglect or default, misfeasance, malfeasance or non- 
feasance of such company, it must be held that Parlia- 
ment did not intend, by sub-sec. 1, to amend or limit 
the provisions of the Employer's Liability Act, R. S. 
M. 1913, ch. 1, sec. 12 of which allows a period of two 
years' for the bringing of such action. 

There seems nothing calling for special notice in 
the reports for the Quebec K. B. for January and 
February last, or in the Quebec S. C. for March. 

A. H. F. L. 








[December 29th, 1915. 

Canadian General Electric Co. v. Canadian Rubber 

Co. OF Montreal. 
on appeal from the Superior Court, sitting m review, at Montreal 

aernana-I^racUce-Art.. ms, me, iJlTZ'o. 7-^^^ 
A contract (In the form usual In the Province of OnuiHn^ #„, *.. 

an unpaid balance of the price and by the dLf«n!!: u 
cUlt^rS'^J.^l"*'*'''*"'^ -renntltL^'o'^S:",i.^^^tX 
JefSltT^m'jt deZ^""*' '^ ''^ """-^ ^ ^^^^^^^^ 
ffew. that, on the proper construction of the contract the lntPntf«„ 

llaufdltTif" ''";* PnH«tlmate a reasoXteSndemnu" t 
iquldated damages for delay In the execution of the cenSicJ' 
that effect should be given to their IntenUon by alloSn^^h; 
deduction Of the amount so estimated from ^heconfract price ^l 
SnSr ""^ ?.° °*"*""^ '»' » cro«,Hlemand therefSr by ^ 

' STa.^!!!:,';'' "^'^ ■*"'""* *"««« »' p"^* that they hJ; 

n.lT^ *' *"°*^ *° consequence of the delay In dellverV 

Yzanoi'>ir«'n V' f **'«*«''* ^ngineerino and Bhipping Co. v. 
P K8T^„^°- !i""^' -^^ C- 202): The "Industrie" ([1894]. 

s "k3?7i?:r^r'"" ""'* ^^•"- ^^'^ ^^- <'« ^- 

Judgment appealed from (Q. R. 47 S. C. 24). affirmed. 

Appeal ditmiued loith coitt. 

4 ri^UJ'"'*' ^•^•' "* ^'^ *• fontffomery. K.C.. for appellants, 
dent^' ^*"*^<"^<»- K-C-. "i ^rroJZ Jf. McDouffoU. foV respon- 





■ ■ 1 

'. ' 


'■ I 



' ; ' 





; 4" 



[VOL. 36 


Alta.] [February 1st, 1916. 

Dome Oil Company v. Alberta Drilling Company. 

On appeal from the Appellate Division of the Supreme Court of 


Present: — Sib Chables Pitzpatbick, C.J., and Idington, Duff, 
Anolin and Bbodeub, JJ. 

Mining company — Corporate powers — " Digging for minerals " — 
Drilling oil uell» — Carrying on operations — Becoming con- 
tractor for stick works. 

A mining company incorporated under " The Companies Ordinance," 
ch. 61, N.-W. Ter. Con. Ord. 1905, and certlflell, according to sec 
16 of the ordinance, to have limited liability under the provisions 
of sec. 63 thereof, has, by virtue of the authority given to such 
companies by sec. 63a " to dig for . . minerals . . whether 
belonging to the company or not," power to drill wells for mineral 
oils on its own property and also to carry on similar work as a 
contractor on lands belonging to other persons. Idington and 
Duff, JJ., dissented. 

Judgment appealed from (8 West. W. R. 996). aArmed. Idington 
and Duff, J., dissenting. 

Rock oil is a " mineral " within the meaning of sec. 63 of " The 
Companies Ordinance." 

Appeal dismissed with costs. 

Geo. H. Ross, K.C, for appellants. 
A. H. Clarke, K.C., for respondents. 


Ont.] [February 14th, 1916 


On appeal from the Appellate Division of the Supreme Court of 


Present: — Da vies, Idington, Duff, Anoli.n and Bbodevb, J J. 

Contract — Construction — Conditions — Mutual perfornianrf— 


In a contract for the sale and delivery of gas if the vendor, not 
being in default, is prevented, by the wrongful act of the pur- 




Chaser, from fulfllUng his obligation to deliver, he Is entfUed to 
the compensation he would have received but for such wrongful 

^ Appeal allowed with costs. 

Tillev, K.C.. and W. T. Henderson, K.C.. for appellants. 
Collier, K.C, for respondents. 



^^"^'^ [February 218t, 1916. 

Ontario Asphalt Block Co. v. Montreal. 

On appeal from the Appellate Division of the Supreme Court of 


'"Tc^-^dA'^uH/"^''™'^'^' ^•'- *"' °*""' '"''«™-' 

Specific performance — Agreement for tale of land — Inability to 
perform—Liabilitv to damages— Diminution in price. 

A lease of land for ten years provided that on lu termination the 
lessee could, by giving noUce, purchase the fee for |22,000 In a 
suit for specific peifonnance of tils agreement. 

Held, applying the rule in Bain v. Fothergilt (L. R, 7 H L IM) 
Fltzpatrlck. C.J.. and Davles, J., dissenting, that if tie lessor.' 
without fault, was unable to give title in fee -» the land the 
lessee was not enUtled to damages for loss of I 'i bargain ' 

Per FiTZPATBicK, C.J., and Davies, J.,-The above rule should not 
be applied when the lease contained onerous conditions binding 
the lessee to expend large sums In improving the property where- 
by^he would suffer special damages If the contract was not carried 

Judgment appealed from (32 Ont. L. R. 243), affirmed. 

Appeal dismissed with costs. 
D. ],. McCarthv, K.C., and Rodd, for appellants. 
Cowan, K.C., for respondent 

;-: ll 

VOL. xxxn. CX.T.— 22 




[VOL. 36 


[Febbuary 21st, 1916. 

Wood v. Gauld et al. 

Present:— Da VIES, Idinoton, Durr, Anoun and Bbodeub, JJ. 

Partnership— Dissolution— Death of partner — Survivor's right to 
purchase share,— Goodwill— Annual balance sheet. 

If one member of a partnership dies the survivor has a right to 
take over his Interest at a valuation, though there Is no express 
provision therefor In tho. partnership agreement. If the Intention 
of the partners that he should, clearly appears from Its terms. 

Brodeub, J., dissented. Idikoton, J., dissented on the ground that 
such Intention was not clearly manifested. 

The partnership .articles provided that at the end of each part- 
nership year an account should be Uken of the stock, liabilities 
and assets of the business, and a balance sheet struck for that 
year; that In case one partner died the co-partnership should 
continue to the end of the current financial year or, at the op- 
tion of the survivor, for not more than twelve months from 
such death; that lor twelve months from the death of his partner 
the survivor should not be required to pay over any part of the 
tatter's capital In the business; and that any dispute between the 
survivor and represenUtives of deceased as to the amount of 
deblta against or credits to either in the balance aheet or the 
valuation of the assets should be referred to arbitration. 

Held, Durr, J., dissenting, that the value of the interest of the 
deceased partner was not to be determined by the account taken 
and balance sheet struck at the end of the financial year follo:wlng 
his death, but the assets should be valued in the ordinary way. 

Held, also, Davies and Durr, JJ., dissenting, that the goodwlU of 
the business was to be included in said assets though it never 
formed a part of them in the annual sheets struck since the 
co-partnership began. Judgment of the Appellate Division (34 
Ont. L. R. 278), reversed in part. 

Appeal allowed in part without costs. 

Tillev, K.C. and Washington, K.C., for the appellant. 
E. F. B. Johnston K.C., for the respondents. 





T„„ n [FEBRUABir 1st 191 fi 

Th. Co>,t,s.„^ Ou. Co. v. T„. c. 

Alberta. Supreme Court of 

Present:— Sir f<„.„. 

employers «n!i u^ amount of the trii u. " *«^nt was en- 

amount of the trZl, u '" *° a<«lon for th* ^ ^'* *'''««"« 
»eid, rererslng the S ''^''^^^^' ''°'^*'^ °' the 

^ and Brode„r^"'jT^"; »''^««'e«i "•«'» (8 West W p , 
receipts In advan„ , ' '•'"sentlng. that th» ^ . ^- ^- 259), 
the defenSam,? * °' '^^^nt had been Ll ''*"^*'"J' «' the 

evidence in «,<. "**• « the clrcuni«t««„„ ''.7«''t charges. 

^- W'atter, for reswmdenta. 



[vol. 36 


The Journal of the Society of Comparative Legis- 
lation produces a truly magnificent number for Jan- 
ua v It begins with a photograph and appreciation 

o? a'man perhaps the best ^^-^ If^/S^^'^Th, 
the English Bar to Canadians, Sir Robert Fmlay. ihe 
Appreciation is the more interesting as it comes from 
the pen of Mr. Justice Rowlatt. We cannot resist quot- 
ing the concluding paragraph:— 

< His reasoning as an advocate derives iU npwer from no art. 
Kave ?he dSlcul fhSigh apparenUy natural a.? of perfect dlrect- 
Z ltd lucidity He has a mind that works without wear and 
Z Aat U the ai oTseventy-three he can sUll conduct the 
SLt practke in the heaviest cases, without sign of worry or 
»S is »J mere result of constitutional strength or plac.d 
fatigue, is no mere re measure due to the cosy and 

temperament; It *^ *"},"% "X^^tglr Robert Flnlay is the 

TdSr^e^Vevef suT«b1^ the affectionate respect of a profess.on 
which is proud of him.' 

This is followed by an Article on the Internatianal 
Joint Commission by Mr. Laurence J. Burpee its Can- 
adian Secretary. We had occasion to nohce thi« 
Commission in our issue for October last (Vol. 3o, P- 
795). It sits under the Treaty between G^^^^f ^i^ij 
and the United States, signed on January 11th, lyuy, 
the object of which is expressed to be to— 

•Prevent disputes regarding the use «' '>«""^"^/.t''"J:,,u"l 
to settle all Questions which are now pending between the I . t 
SUtes and tSe Dominion of Canada. Inyoly'"^,^* f ^o th U- 
ri?n8. or interests of either i\«>»"«° ♦."^nt'er' L to make 
habitants of the other, along "»«»^/°""?f^^ '""""'iu such que.- 
provision for the adjustment and settlement of all sue 

lions as may hereafter arise.* 

•It is by no means the intention of the ^•_ ^- '';j*^anft'<'s f"^" 
monthly feature a mer. Jumble «* «;"'" ;ho Sd Statelnro .xam- 
different part, of the Empire and from the InlteJ Sta ^^^, ^^_ 

ir^d, and attention is called to whatever seems most » 

portent in them.— Ed. C. L. T. 


It is interesting to read that — 


'Since Its organisation the Commission has bad before It a 
number of applications for the approval of works involving' the 
diversion of boundary waters. . . They have ranged geographi- 
cally from the St. Croix River, in the extreme east, dividing the 
province of New Brunswick from the State of Maine, to the Lake 
of the Woods, in the west. They have embraced such important 
works as a new water system for the city of Winnipeg, taking 
its supply from Shoal Lake, a tributary of the Lake of the Woods; 
huge water power projects on both sides of the St. Mary River, be- 
tween Lake Superior and Lake Huron; and various other similar 
undertakings. In every case the decision is final under the 
terms of the Treaty; in every case up to the present time the 
Commissioners have been unanimous in their decisions; and in 
every case the settlement has given satisfaction to both Govem- 
nipnts, and to the public and private interests Concerned.' 

Next oomes an Article on Labour Legislation in the 
United States, by Mr. Samuel Rosenbaum of the 
Pennsylvania Bar, who sums up results by saying — 

'Perhaps it Is not too much to say that, as foreshadowed in 
legislation, the era of strikes and violence between organised labour 
and its Immediate employers is giving way to a period in which the 
public Is imposing upon employers an express legal duty to pro- 
vide safe and sanitary work-places, and to allow reasonable hours 
of employment and rates of wage, and executive officers are being 
clothed with wider and wider Judicial powers to aid them in en- 
forcing these statutes.' 

The number also contains Some Notes on the Con- 
sfitiifion and Legislation of the Federated Malay 
States (a group of States under British protection 
which has perhaps attained to a higher point of con- 
stitutional and economic development than any other 
British protectorate) by J. R. Innes, the Judicial 
Commissioner. Both the State and the Federal Coun- 
cils possess all the attributes of sovereign legisla- 
tures; and a long Article by S. E. Minnis on The In- 
come Taxes of the Self-Governing Dominions in 
whit'li are considered the income taxes of the Aus- 
tralian Commonwealth, New South Wales, Victoria, 
Queensland, South Australia, Western Australia, 
Tasmania, New Zealand, the Union of South Africa, 
Prince Edward Island, and British Columbia. As 

" ^i''i 

a , 

i 3 




[VOL. 36 

the writer explains, in the other Canadian provinces 
no tax of the nature of an income tax is imposed for 
provincial purposes, but in some there are municipal 
taxes on income forming a subsidiary part of general 
property taxes. Such comparative studies are of 
nmch value. 

Then follow the usual Notes on various matters 
of interest, including some recent English and Austra- 
lian cases and Reviews of books; while the bulk of 
the volume is taken up with the Review of Legis- 
lation, 1914, covering not only that of the Empire 
in its various parts, but also that of Denmark, 
France, (rermany, Norway, the United States, and 
Sweden, with an Introduction by Sir Courtenay II- 
l)ert, G.C.B. 

The Indian Law Quarterly for October, 1915, 
makes us think that Mr. Justice Tyabji, late of the 
Madras Bench, must be a delightful person. In the 
course of his reply to the address given him on his 
leaving the Bench, he said: — 

' The mention of my beloved father's name has completely over- 
po« ored me. ... If you had known my father as weU as I do, 
>ou would know the great difference between him and me. I dis- 
charged my duty to the best of my ability, and did what I thought 
was right. Intelligence is a divine gift, and if I am wanting in it, 
it is no fault of mine." 

Again at the farewell dinner given to him, he 
said, in reply to the toast of the judges: — 

" I read somewhere that the relationship between the Bench 
and the Bar in. Madras was not what it should be. . . . For my 
part I could not see that there was anything wrong In the re- 
lationship. Sitting with a fast colleague I have to run a lame- 
donkey race, but have the satisfaction of seeinr the conclusions of 
my fast colleague to be invariably right." 

There follows a notice by the editor of Sir Law- 
rence Jenkins, K.C.I.E., who recently returned from 
India, on the termination of his tenure of office as 
Chief Justice of Bengal. Mr. C. E. Odgers, Admin- 
istrator-General, Madras, contributes Some Notes on 




International Law and Their Bearing on some of the 
Events of the Recent War. He points out how Ger- 
many has violated the accepted rules of International 
Jaw, both as regards neutrals and as regards belliger- 
ents. The number concludes with Chapter I of a 
learned and lucid disquisition on the Origin and Ex- 
istence of Private Property, by S. Soundararaja 
Aiyangar, High Court Vakil, Madras. 

We always take up the Law Notes (London), with 
special zest, in this case the number for February 
It quotes from what it terms " that masterful paper "' 
the Daily Mail an account of— 

a.kJi^*.*"*,**"] "''* ceremony of the commoners flogging King 
AthelBtans land on New Year', Day at Malmesbury Six mel 
were admitted to common rights, i.e., grants of land under iSng 
Athelstan's bequest of land, given as a reward for help in flghtl 
1"„H w ^T- ^*°* Athelstan was crowned king of the Mercians 
and West Saxons at Klngston^n-Thames in A.D. 925. Supreme 
control of King Athelstan's gift is vested in a warden and 'fr^ 
r.ToKT .°T »*"*»-»'<»'»«" were talcen to their allotments, 

and a hole was dug in the soil into which each new commoner threw 
a shilling. Each commoner was " flogged " with a hazel twig the 
surveyor repeating the old formula: "Turf and twig I give to thee 
he same as King Athelstan gave to me. and I hope a loving brother 
tnou wilt be. ' 

It is amusing, too, to read the account our brilliant 
httle contemporary gives of the way in which Mr. 
John Lewis, brewer, Richmond, established, in a great 
case at Kingston Assizes, in 1758, the right of the 
public to free ingress to Richmond Park, of which 
(reorge II had made hi.« daughter, Princess Amelia, 
Ranger, n- endeavoured to restrict the public priv- 
ileges. Sk Michael Foster, the- judge, summed up 
against the Princess, and the jury adopted his views: 
and, says Jmv Notes:— 

.iff wIM" Interesting to note that when the judge asked the Main- 
tiff whether he would sooner have a ladder to go over the wal or a 
door he decided in favour of the ladder. " reflecting that stranlr. 
'^!: "l^l^rr: "J *'* ''*^"^«* °' admission 'througf a dC. 

also 'thrt"in Tl . ??^" *" **='=*'"''^ •*' ^^^ *•«««•• considering; 

also, that in process of time a bolt might be put on the door and 





[VOL. 36 

then a lock, and so hit efforts be greatly frustrated: <emM«, also, 
that a step ladder would signify Itc own use to every beholder." ' 

As the Law Notes justly adds— 

• Mr. John Lewis, brewer, of Richmond, was no fool. Has Rich- 
mond Town a monument to keep ever green the memory of a man 
who championed the rights of the public? How many foreign 
visitors would Richmond lose if there existed no " free ingress into 
its" park. 

An Article on Impossibility of Performance due 
to War discusses the authorities as to contracts rend- 
dered impossible of performance by some such un- 
foreseen happening as, e.g., the present war. As the 
writer says, perhaps there is in English law no real 
exception to the principle that impossibility of per- 
formance is no defence to breach of contract. What 
the party has agreed to do he must do, or if that be 
impossible he must pay damages. The apparent ex- 
ceptions turn upon the question of construction, what 
events were within the contemplation of the parties 
when they entered into the contract? Then comes No. 
58 of a series of Articles on Company Law being 
upon the Poiver to nominate a Director. The admir- 
able Chats with a Student, are represented this time 
with one on The Ride in AUhusen v. WhitteW which 
deals with the adjustment of accounts between tenant 
for life and remainderman of residuary personalty 
settled by a will. 

Some recent decisions in England under the De- 
fence of the Realm Acts and regulations — one of 
which, the Zadig case, we noticed in our last issue — 
are giving rise to much interesting discussion upon 
the constitutional safeguards of liberty in legal per- 
iodicals. The Solicitors Journal for the 19th ult., after 
referring to John Austin's propagation of the doc- 
trine that all laws are the command of the Sovereign 
per.son or body in the State, a doctrine popularised in 

* (1867) L. R. 4 Eq. 205. 


our own day, by Professor Dicey as the " supremacv 
of parliament," goes on to say- "Preraacy 

Judges of the 19th century would have done. They would havrhriH 
that Magna Charta was a document of bo h Rh and I^nifnS a .Sir 
uct*r that, although Parliament could overrule It lVm..f L 
Bumed not to do «, unle.. It d,d .TinlZZ Vl"""^ "^ Zt 

Which fnTr«?" "*" ''* """'"« °' «^«° '»"• limited dlvlnlry 

r„/ 1 ""^rty. AccuBtomed to years of bureaucratic legUlatlon 

judge.-rtirnr.*';* •r!;!"'^''"^"* «' •"•^"^ "^ Par.,am?nt "u" 
;»;flr Divisional Court and the Court of Appeal at any 

rate-have now declared that Jlffl„„a Charta Ib but an am „f 
parliament a. all other Act., and no later .ta?ute. at ei" In war 
Xu n', *^ ^^n-trued-even when patently a.^blguo"B_?n the 
liLfw ?*•*'' '*"■ ^""^" ^'*°'""'- Such a view woSld have been 

»«.n.»^r * «*nerotlon which supported " Wilkes and Liberty ' 
against the autocracy of a House of Commons would not have ^L 

n their full sense at the close of the present war. It Is well thft 

JSrfiertl"" °' '*^ '*"'**"*» •" '»>« '"'^' '» come shourd ie e" 
couraged to commence their study of constitutional law aV the 
fountain head with a perusal of Magna Charta.' 

The same issue contains the first of what seems 
iikely to be a valuable series of Articles to Canadian 
practitioners, by T. Cyprian Williams on The Dam- 
ages recoverable on a breach by a purchaser of a Con- 
tract to sell Land, in which he devotes himself mainly 

.XrXfcrheTayf ^'^ ''''''' "^^ ^' ^^^ ^ 


ii. l!^ll' v' °*^' PT* "^ ^^"^ *« *^«t expressed 
111 the Solvcttors Journal as above noted, in the Law 
Tunes, for February 12th. 

D.v,;fora/'co"u"rt"hL'^hlX'^h^ ,°' ^^^*"^' "^^°''»*"« t*'" 
«i wiun. Has held that the regulation made pursuant to 

'59 Sol. Jl. 25,1. 

'I lit, 




[VOL. 36 

the Defence of the Realm AcU. wbkh permU. the Internment of 
British Sec . under certain condition.. U intra vire. By the 
statute reKuln.lons can be made 'for aecurlng the public safety 
"nd the defence of the realm." and under thoae statutory power, a 
Jeguatlon ha. been made for the Internment of 'any penwn" In 
IZot hi. ho.tlle origin or aMoclatlon.. where It 1. nece.«ry for 
Securing public «ifety or defence of the realm. No doubt the.e 
Tre verj wide power. Indeed, but the general opinion clearly w h 
be. that they are no wider than the preaent occaalon warranty 
Naturalized alien, of ho.tlle origin are no "«« "J«>f J° ^ 
friendly to thl. country than unnaturalized alien enemie.. Of 
cour« there may be exception., but ^he «g"laUon amply «t^e. 
guard. the«e penwn.. and merely place. In the hand, of the au- 
fhorltle. a very proper power for deling ^'^^^'^jr 
.u.pect In their feeling., toward, the country of their adopUon. 

Tlie question, however, seems to be, so far as we 
understand the point, whether habeas corpus should 
be denied, and British subjects refused an oppor- 
tunity of presenting their cases to the Courts. 

The same number of the Law Times contains notes 
of the first two of a series of three lectures recently 
delivered by Sir John Macdonell Quain, Professor 
of Comparative law at University College, London, 
upon " The Law of Procedure: a Comparative 
Study." They are evidently so interesting that it is 
to be hop»'d they will soon be published. Amongst 
other things Sir John says- 
Lawyers were too prone to .peak of procedure as If It consisted 
of no more than the artificial rule, of a game. They had not seen 
In Its history what it really was— a continuous effort to do Justice. 
... the genius of a people aswrtlng itself in its own way. 
Nothing was more characteristic of a race, nothing revealed more 
fully its true nature, not even its literature, or its art. or Its history, 
than procedure rightly understood. He who followed closely the 
course of an action from Its Inception to Its close In a French. 
German, or English Court would know more than could be gath- 
ered from long travel or much reading of the genius of the particu- 
lar people. One side of procedure has been too litUe noted. It was, 
as De Tocquevllle had pointed out In Impressive words, a great 
safeguard against arbitrary conduct on the part of the rulers; 
legal formalism was the twin sister of liberty.' 

The second lecture of Sir John Macdonell dealt 
with, the Athenian system of procedure, in connection 
wdth which he makes the significant remark— 


The Virginia Law Review for February com- 
mences with an Article by Clarence 0. Amonette on 
Usury Laws affectmG National Banks; followed bv 
one by Alex Macdonald on The Doctrine of lies Ipsa 
Loquitur as applicable to Injuries to person or pro- 
perty from Electrical Appliances not under the Con- 

^c^iJ!: rrzw^uer"^'''' ^--•^'"•«- '^^ 

However we will not pursue the Article further, 
because it brings us to one of those lines of cleavage 
between American case law and our own, which make 
reliance on American authority so misleading, for 
t appears that the doctrine of Eylands v. Fletcher 
has beep practically repudiated by all the Courts in 

United States. This as every bwyer knows is 
the leading case on the English principle that where 

LalTtf .""'" hi« premises a dangerous instni 

thl\, «n/nsurer against injuries resulting from 
the escape of such instrumentality. 

V'\ '^■' ^t'"^ ^^ Bankruptcy in Virginia, by Leon 
^oodnian; Notes, Recent Decisions and Bolh Re- 

;t; s 




[vol. 36 

We welcome a new legal periodical in the fl^oMtfe- 
ern Laiv Quarterly (New Orleans), of which the num- 
ber for April is before us. It commences with an 
Article bv Professor F. P. Walton, lately Dean of 
the Law Faculty of McGiU, but now Director of the 
Sultanish School of Law, at C&xro'-^n Ctvtl Codes 
and Their Revision. Commencing with the statement 
that it is vain to expect any general agreement about 
the merits or demerits of codification, he declares 
himself, after ' a pretty long practical experience oi 
both uncodified and codified systems of law, a strong 
believer in codification, but, we must not expect it to 
produce miracles.' He discusses the proper length ol 
Codes, and the propriety of periodical revisions: and 
it is interesting to read that the German Code has 
grave defects as to its contents and as to its style, 
and has met with severe criticism at home, though it 
was twenty years in the making, was the work of 
highly trained experts, and every opportunity was 
given for criticisms and suggestions from legal bodies 
and business men. In conclusion a number of points 
are suggested as proper to insert in a revision of any 
of the older civil codes under the title '* of Owner- 
ship." Many of the suggested Articles point the 
difference the civil and the common law. 

This is followed by an Article on The Value and 
Place of Roman laiv in the Technical Curriculum by 
Charles Sumner Lobingier, judge of the United States 
Court for China, and lecturer on civil law in the Um- 
versitv of the Philippines. All the stock arguments 
are set out,— that Roman law is the mother of otlior 
legal systems, which have profoundly influenced tlio 
civilized world, that it is impossible to overstate its 
value as the kev to International law, that furnished 
with a knowledge of Roman law, the English investi- 
gator will more accurately gauge by comparison the 
excellencies and the defects of English law, that the 
Romans were the first who developed a true system 
of private law, that Roman law is fast becoming tlie 




lingua franca of universal jurisprudence, that it is a 
mine of legal terminology. One point he does not de- 
velope, and that is that Roman law as set out in Jus- 
tinian's Institutes is an admirable introduction to the 
study of analytical jurisprudence, so marked is the 
turn of the Roman jurists for accurate analysis of 
legal conceptions and phenomena. Speaking of his 
own experience in the College of Law in the Univer- 
sity of the Philippines, he says— 

• I hare found not only thkt, after taking Roman law, the stu- 
denu are better equipped for the subjects that follow (that would 
be only natural In a civil law Jurisdiction), but that academic stu- 
dents— i.e., those who have taken the studies leading to the A B 
degree— Uke hold of Roman law better than of any other subject' 
this I attribute to the facts that It Is more closely related to other 
studies in the arts course,— e.y., Roiran historj Latin and classical 
themes generally,— and Is taught In much the same way. But the 
various branches of modem law are so remote from any subject 
studied In the ordinary undergraduate course, and are usually 
presented In such a totally different manner, that the student at 
once finds himself on strange ground and considerable time Is 
needed to adjust himself to the situation.* 

Other Articles are entitled An Example of Hom- 
eric nodding in relation to Reduction of Donations 
inter vivos, by Charles Payne Henner, professor of 
law m Tulane University; and Sugar Trust Litiga- 
tion in Louisiana by Walter J. Sutton, Jr., of the 
New Orleans Bar. 

Case and Comment (Rochester, N.Y.) for March 
IS well-inspired in devoting a i.umber to the subject 
of Personal Liberty. The Article which interests us 
most is on The Decline of Personal Liberty in Am- 
erica by the Hon. E. M. CuIIen, fornierlv chief judge 
of the Court of Appeals of the State of New York. 
He protests, and cites several recent State statutes 
which justify his protest, against two tendencies of 
the times: — 

Rl.v f^^f*' *°.f*"f«*"* " legal technicalities, on the plea of neces- 

on of r"". -1 .?*\ "*'*'^''"*' '*"• *•»« »«="'-"y ""^ the protec- 
Urnnf . '"f'vldual citlzen as against the government; and, 
second to restrict the liberty of action of the Individual. vh;n the 
effect of such action Is confined to himself.' 








[vol. 36 

It is not only in the United States, but also in Eng- 
land, and in Canada, that, as we think, there is a 
growing tendency to undervalue personal il>erty 
This is exemplified not only by - grandniotherly 
legislation, but by a tendency to entrust to exe/'utive 
and administrative officials, and Boards, matters 
which would formerly,— and should, as we contend,— 
be left to the regular Courts; also by a tendency to 
sanction government by Order in Courcd, instead of 
by statutory control: also by a tendency to dispar 
age, and in many cases, dispense \\ath trial by jury, 
which was formerly, and as we think, not without 
reason, considered to be the palladium of our liberty; 
also by proposals to abolish the grand jury, one ol 
our oldest British institutions. Eternal vigilance is 
the price of freedom; and we wish Judge CuUen 
" more strength to his elbow." 

The Illinois Laiv Review for February coiftains a 
striking Article entitled The Living Laiv by Louis D. 
Brandeis, of the Massachusetts Bar. By " the liv- 
ing law " the writer means the law which keeps in 
touch with life, or as he most aptly quotes from 
Oliver's Alexander Hamilton, the law which is " a 
reality, quick, human, buxom and jolly, and not a 
formula, pinched, stiff, banded and dusty like a royal 
mummy of Egypt. He concludes his Article with an 
admirable parable — 

' Charles R. Crane told me once the atory of two men whose 
lives he would have cared most to have lived. One was Boglgisli. 
a native of tne ancient city of Ragusa off the coast of Dalmatia, 
a deep student of law, who after gaining some distinction at the 
University of Vienna, and In France, became professor at the I'ni- 
verslty of Odessa. When Montenegro was admitted to the family 
of nations, its Prince concluded that, like other civilized coun- 
tries, It must have a code of law. Bogiglsh's fame had reached 
Montenegro, for Ragusa is but a few miles distant. So the Prince 
begged the Czar of Russia to have the learned jurist prepare a code 
for Montenegro. The Czar granted the request; and Boglglsh under- 
took the task. But Instead of utilizing his great knowledge of laws 
to draft a code, he proceeded to Montenogro, and for two years 
literally made his home with the people,— studying everywhere 

■ ir i i r i j.^j 




1! Lw T,. ' !"■ P^»f"««' *»>«"• needs, their beliefs, their points 
Mv^ a-/ '" ^^ embodied In law the life the Montenegrins 

irUJle7 '"^ '''*' '"""^ ****=''"'* " ""P'^'^^ t'^e *"' »' 

. Other contents are T/te Welter of Decisions bv 
Protessor Edward H. Warren of Harvard; and Fed- 
tral Courts and Mob Domination of State Courts by 
Professor Henry Schofield, of Northwester Uni- 

The Harvard Law Review for March contains 
Artides on The Parental Right to Control the Reliqi- 
ous Education of a Child by Lee M. Friedman; and 
Pt. 11. ot the Articles on Property in Chattels by Pro- 
fessor Percy Bordwell, of the State University of 


The Columbia Law Review for March has Articles 
on The Federal Grade Commission bv Charles W 
.-leedham; The Doctrine of the Inherent Right of 
Local Self -Government by Howard Lee McBain; and 
^Some Aspects of the Nature of Permanent Alimony 
by F. Granville Munson. 

The Michigan Law Review for March has Articles 
on An Inquiry Concerning Justice by Floyd R 
Mechem; The Michigan Judicature Act, 1915 II bv 

^^Tr2- f r*r'^»1' -ith the now strange caption 
Porms ot Action;" and Church Cemeteries in the 
American Law by Carl Zollmann. 

.«/TlJ V w^^'^'r''"'^ ^^' ^""'^^^^^ce Law Jour- 
Zv i!; " If'''^^^^-' The Scottish Law Review 
fo. February with its excellent Notes from London- 
and the recent issues of the Madras Law Journal now 
ntering on its 26th year; The Criminal Law RepoHer 

Calcutta Law Journal; and The Australian Law Times 



[VOL. 36 


Admiralty Lau and Practice in Canada. A Treatiae on the Juris- 
diction gpnerally and in particular cauaea, and on the practice 
of the Exchequer Court of Canada on its Admiralty atdc, with 
the Statutes and Rulea of Practice. By EC ward C. Ma>er8, of 
the Inner Temple, Barrister-at-law, Member of the Bar of 
British Columbia; First Edition. Toronto: The Carswell Ca, 
Ltd. 1916. London: Sweet and Maxwell, Ltd. pp. xxx, 550, 
and Index. 

The object of this treatise is to supply a handbook 
of reference to the decisions of tlir Admiralty Court in 
Canada. It gives moreover a general and succinct 
account of Admiralty jurisdiction, with especial refer- 
ence to its most ch.nracteristic feature, the maritime 
lien. The book seems very carefully done, and to be 
a credit to Canadian text books. The printing an<l 
paper are excellent. 

Butterworth's Yearly Digest of Reported Cases for 
the year 1915, being the first yearly supplement of 
Butterworth's Seventeen Years' Digest, 1898-1914, ami 
containing the cases decided in the Supreme and other 
Courts. Edited by Harold Meyer, of the Inner Tem- 
ple, Barrister-at-law. London: Butterworth d Co., 
Bell Yard, Temple Bar. 1916. Pp. xlii; 886. 

Caaea on Company Lau: Selected by H. A. Robson, K.C., and J. a 
Hugg, Barrister-at-law. Toronto: The Carswell Co., Ltd. 
London: Sweet and Maxwell, Ltd. 1916. 

The desira^ >lity of placing actual cases on Com 
pany Law before law students was the motive for this 
collection. The selection of cases does not pretend to 
be exhaustive. They illustrate, however, all the lea.l 
ing principles and features of company law. Read m 
connection with the notes, it would be difficult to fin. I 
a better introduction to company law than this book. 

Modern French Legal Philosophy (Modem Legal Philosophy Serirs: 
Vol. VH). By A. Founi«e, J. Charmont, L. Dur'lt. «"" 





""iilUJVH. OAK 

B".- Co„„„'J" ?,"J."' »' I-w. Cro. E^.";: *C™fC:.' 

ear>7Lsr '" ""«-'» "■- -* at greater ,e„„h i„ a„ 
■olbwXrtl """" °' "■" «•*"«'«- '"* v„l„„e wi„ 

W'e have also received; 

<■«. Acsociated with rn „f ^"'^"""y Commksion- 
Toronto. ' ■"'^''- '^«'"<"' by William Briggs, 

^nnter t,e Kind's Most E^XJ Z,itt%%l''''' 

ro,Uo. Pp, .^, Price^sc ""' ^''^^''^^rs, To- 

As the publishers them«!P]voe • * 
anner into a clear em^monJi''"V''^ *" ^««* «'e 
•■^nd, paying son.eone ^ t^t" f ^^T-^" •^' °" «^'«0' 
part of his produce is thpi?"'.^'"" *^" ^^««t«' 
"Rvery farmer," thev at>tr' 'V*'^''' '^*«^ ^ooJc. 

' ^^ *^«" *e« us. " should -o-H ^ 
"" • xxxvr. c.r..T.— 23 ' ■ -«u u 


through times: once to -U-J>at "Joolhe is , 
twice, how, »*JJ>-J'f,; ';S^^\„a,si^ a-d 

■r: r his":"" li i^rfathe^r outside the scope ot 
a legal periodical. 

,• .1 Tipview of Agricultural Economics: 
Jnternaitonal Heview -uj ^y q^^:„] Jntplli- 


Elba, a Hundred Years After, «>2/,«««^^«,^; f^^ 
A/ A FR 8 C From the Transactions of the Royal 
Society 'of Canada. Ottawa: 1915. 

!"»''.].J| ii |' 

J Jl ipwi I . 


- ? 





cial^otS^^f fr'i'' 'f ^^^''^ ^^'^ ^«"t^i"« the offi- 
cial notice that the dignity of a Knight of the United 
Kingdom has been conferred upon •- 

VfiimrDiru^^rr^ ^'"%"^r ^«^*^«™' Canadian 

Board tZh J 4^'T" "^ *^" ^"^P«"'-^l Munitions 
Board, Canada; The Honourable Frederick William 

?ohn Kenl'd'*'^"' ^^'"' f"^*^^^ '' Saskatch " an™ 
real tST ^^^''^-'-^^^'^^^^^S ^"^i"^*'^ *« the Mont^ 
V e ?amon K r"™"'T' '^ Honourable Louis Oli- 

coDvof tWnn" ^"''"' ^' ^^'^^^'» 25th, contains a 

he To J^ P "^I^V'f ^"*^"" P«««*'d «t * ™^ting of 

MarJh Tt:- '^ '^' ^"'""^^^ ^^ Akieburgh,%n 

to Z^r^ the cordial thanks of this Council be awarded 
to the Canadian Government for its generous ?rant of 
money for the alleviation of distress%mong hCdin, 

he sum of £1,000 having been provisionallv appor 
tioned for the relief of sufferers in this BoronghT 

Jhn l„ J > P'^h^^^tmg until September 30th next, 
the landing at any port of entry in British Columbia 
of labourers, skilled or unskilled, ' in view of the 

n'^f Poorer''' ""'^*^^" ^' *'^ ^^^""^ "-^^^ ' 

A Supplement to the same Gazette contains a set 

ms^ rules of the road for the Great Lakes in- 

clu Img Georgian Bay, their conwcting and tributary 

3! 1 

*V 1 




3, 1 



»' t ■ 

,„.?!'e Supplement to the Manitoba Gazette of Ma»v.h 

bin last contains the statutes of the last session of 

ti«e Legislative Assembly. Amongst thom is an Act 


to amend The Companies Act, amongst other things 

amend the Jury Act, which enacts that- 

party, tbe Judge may. « '"^ ^^^^^ J tiy'^Jth.r termB. that auch 
lion of granting .«ne. »» «'«»^'; ^J, ,,ot to exceed $100 to- 
party .hall pay to the »~<?°'JJ^^,t' ^ance of the Jury for auch 
rr irt/r roSl a. the tnal -han he further 

^^^lS::ie?rprptv«raS procedure tor recovery of 
■mall debU not exceeding $50. 






beef .p1«&>r„lf^X'ZT' ^^■«- "-■' "" 

po,m„;"rNr,rJd!a"Jd'''™"'^ '■""'" »' ""^ Op- 
Supreme Court "*• " ""^ « J»d«« »f the 

Instead of a Supreme Court, eonsistin* „f 
fudges. """'*"^ °' * ^^^^^ J-*-e andlt 

a Chief 
of Sas- 

Su^JL'CrhiveteenS"' Z"' ^^ «-" 

Superior Court Bench at ThLlT ■'".'*'* »" *>« 
the late Judge TouriJ;, *' """' "'™" '*" ^»<»»' by 

^ffort to «p:n's:^zi''rr"4r '""™'' 

SnJ^er^t^ree'igfs'i'.rJr*''^ '"«'''"'« <" 
tl.e County CoTrt of Mn^r? «PP<>inted judge of 

ihth M^ m5 ''™^[^^/ "^^"^*^^ «^ *»»« la- i^it 
"^nicn Mr. McQuarne had also belonged. 



Another barrister from the office of Borland, Mc- 
Intyre, McAughey and Mowat, of Saskatoon, has en- 
listed, being E. W. Van Blaricom, who has answered 
the call of his alma mater, Queen's University, King- 
ston, which is organizing a company of its graduates. 

A. MacLeod Sinclair, of the firm of Ewing, Harvi,. 
& Sinclair, is leaving Edmonton, probably at the end 
of this month, to take a position with the firm of 
Lougheed, Bennett & McLaws, of Calgary. 

A cable has been received from France, stating that 
Lieut A. P. Grothe, a well-known member of the Mont 
real Bar, who went to the front with the 22nd Bat 
talion, has been wounded in the shoulder. 

L. H. Martell, M.A., who has conducted a law office 
in Windsor for over two years, and Hants Co.'s Lib 
eral candidate in the next Federal Election, has en 
listed with the Nova Scotia Highlanders. 

John S. Campbell, K.C., St. Catharines, has been 
appointed County Court judge for Lincoln; G. H. Hop- 
khis, K.C., Lindsay, for Haldimand, and D. Swayzc, 
Dunnville, for Victoria-Haliburton. 

Mr G. G. S. Lindsey, K.C., of Toronto, Ontario, 
who has been in Pekin for the last year, supporting a 
grant of a mining concession to large European inter- 
ests, has finished his work in this connection. The 
Imperial mandates now officially announce that Mr. 
Lindsey has been asked to undertake and has accepted 
the task of drafting new mining laws for China. 

G. H. Aikins, only son of Sir J. A. M. Aikins, and 
a well-known barrister, and Freer Brof^k, son of the 
late J. H. Brock, of the Great West Life Insurance 
Company, have joined the 184th Battalion, now bomg 
mobilized by Lieut.-Col. W. H. Sharpe. 




.-onneeted with the 8™ of Ci/e iml ffi ."'".'t'" 
up active service in defen ™of ?he fw t '^'" 
h«?>. grmted « conm,i8gi„rwith tt 2^,^ r% ""T*^ 
avian) Battalion. ™ (*'«'Klin- 

Tatt'ri .V- «« "■• '»"»-»« "eaths reported 

our last issue: 


Hoylake, Be^l^ '' '" ^'""'P^^' '^'"^^ i» action at 

«e frontier grave is far away— 
Qui ante diem peruit 
Sed mile; $ed pro patria. 

"urd and Bucke L™;. . I * '**' *™ of Pardee, 
27lh last. ' ^""''' *» forest, Ontario, March 






l*" mi 


j^ja ^ 


S^ '653 Cost Main Street 

5".^ Rocheste-. New York t*609 USA 

'■^S (716) 482 - 0300 - Phone 

aas (716) 288 - 5989 - Fo« 



[vol. 36 

Edward 1[. Tiffany, K.C., formerly of RidgetoAvn, 
ai)d afterwanis of Alexandria, at Montreal, on March 
15th last. 

James Boyd ]3avis, who formerly practised in To- 
ronto, and latterly in Oakville, at Toronto, on March 
6th last. 

Hammel Madden Deroche, K.C., at Napanee, Marcli 
9th last. 

Pierre Aniable Archambault, clerk of the Circuit 
Court at Montreal, in Montreal, on March 11th last. 

'^IJH^'lSAlnw l.wv TlMi-s. 


h r 

i ) 



MiNiST«i» OF Justice. 



"ii: ( \\ Mi; ^ >, i , , 


Theasuhfh ONr*mo SAn A 


















1 1 









Canadian law Zimes. 

Hon. C. J. DoHEBTT, K c -—Mr ni, • 
Grace, and fellow members nflh n 1 f^^*™*°' Your 
"0 small undertakinTrhat th!A • ^°*T ^"•' ^his is 
n>e. He told you hoi i, ,nd 1'"°"° ^^ '"P«^«^ "P°° 
a^ked me to come hei^ a^^ 1^. how considerately he had 
speech, but just .ay a^w 1- .''*^" '*^'^"* "taking a 
when I ]ook'aroun7a^d ee W V m '°*''*'^" ^'''' A 

naturally I mT e^Cd^r Vv' ^f.*'"^°^ '^^"^ ^^' 
while he pretended to be kit °^ *^"* *^« Chairman 
'•'ight, if he had given LTtl. """" T^^'^^^^Jy <=niel. I 
of an effort at maSuTa spe^.h''"a^^^^^ ?f' ""« ^^ 
at the Bar as many ytars as I h«v / 1 ^''' °°* ^««° 
Bench for the years /was Zl 1 'f ^ ""'^ °°* «° the 
to -ke a speih, Ld 7c t^e ;^knortf"'i^^^^^-^ 
and excited politician I am «L , *^® ^^'^ ^^ '•abid 

irresistible is the JemntaL . ^'^ ^°^ ^^^ *b««I"tely 
speech. The Chairma? W th^*/ T^^t'^'^ *« '"^^^ « 
considerately intimaTed to L" tw "l ',V'' ''°*^^^ ^^'^ 
"Pon to make a speech- butTi! / °"^^ '"'* ^« ««"ed 
I am asked to entertln tL« i ?" ' -°*''" '"'**" ^^^° 
the task seems aTl th*:^gr a /itT^^ ^'^^^^^^^^ «nd 
follow the gentleman whf I ^ f *"" '^^"^^ ^Pon to 

as ^^finister^f Ju^?°e^a7, ^^ distinguished predecessor 
tainment that I am sure he h» ,^r '"'^ " *^*« «^ «^ter- 
of the same kind. CT^ttt £ V^ '^ 7?^°^ ^^ -"« 
give anything of the^aml £i ^ ' "''^^^^y ^'^^^> I cannot 
^iti> perfect sincerity Tnd^?'^- ^ *^'° ^^^ *« ^^"^ however, 

l>ecause I would "otlLe it r"! f '^^^'"*« ''^^^'^^^ 
not iike It to got to other ears, that I 

^•OL. XXXIV. C.I,.T.— -13 



,'Tt * 


'i 71 




have been privileged to attend many gatherings of Bar 
Associatic s but I never attended one with as great pleasure, 
with as p€rf.H!t enjoyment as I have attended this gathering. 
Up to this moment that pleasure and that enjo^inent were 
absolutely unalloyed, because 1 was relying on my treach- 
erous friend the President, and 1 must say that he carried 
me through up to this moment in very good shape indeed. 
I owe him so much for that that I feel that I really- 
well not just now hut in the course of time-will come to 
be able to forgive him for this las. and unexpected act of 
treachery '^e gave me the advantage during the day of 
leai; ing a very great deul indeed, and he will send me home, 
if he succeeds in getting me to go home, freighted with 
knowledge that will last me I hope till your next annua 
banquet, when I will come back lo get sone more. I mubt 
say I enjoyed and profited very much by the addre^es 
that it was my privilege to listen to to-day at the meeting 
of the Bar Association. I need say nothing about the ad- 
dress of our friend, the President, which gave us sucl. 
absolutely satisfactory r'>asons for the faith that is m him 
with regard to the utility of Bar Associations in ->ncra 
and the Ontario Bar Association in particular. I was ^lad 
to hoar him re-echo something of a doctrine that I have 
preached more or less through the less densely populated 
portions of our country this fall, that is to say the desir- 
ability of the organization of a general or Canaaian Bar 
Association. It is not to be wondered at that in the Pro- 
vince of Ontario, great a^ your Benchers and yoar Law 
Society may be, and they are great (I am one of them), 
it is not to be wondered at that you realize the importance 
of organizing and maintaining a Bar Association; because 
I understand that in this province there are threats abroad, 
and it is intimated that some day the people will rise 
in their might and abolish the bar, and when the bar is 
abolished where will the Benchers be? And how happy 
will you be to have the Bar Association at least lo tau 
back upon. But that is a peril that perhaps does not equally 
menace the rest of the province of the Dominion, and 
therefore, perhaps, it does not as urgently call for ne 
organization of a general Bar Association; but, 1 «'a^ 8'» 
to learn that the Bar Association of Ontario, while « 
realized that kindness and consideration for the P]"^!;-;- ' 
like charity, begins at home, that it also realized that 




«as not necessarily ^ gfov „* i. 

ti'erefore, to J,,ar tJ.. Pi.,? ''"'^- ^"'^ I wag eJad 

- -igM hope " it e r'r w""^^ ''' '^-'-^ai 
Association. As I have said ',?"""""".'' «^""a' B«r 

c'f 't, and to be thereby, awured ft* " '*''"« '•^-^^''o 

had sown had fallen on CtH .r /"'? "' ^' '^^ I 
could be no greater guar nt J ^ ' '? «-^ there 
t'on and maintenance of Ir , ^ «"cc««ful organiza- 
ti-e fact that the great Bar of^On/"" ^". ^««^'«"of tian 
Association would take an LZT" '"'^ *^^ ^"^^"^ Bar 
join with .ar fellow memb^s of th" '' ?' ''^ ^^"'^^ to 
out the Dominion in giT,ne it I J ^ ! P/"^"''^'"" *^^4h- 
'" J^eening it going/ "dV not Tan t"'' ''"^ ^"'^^ ^^'^'ted 
-""t me to, to make excuses in Z,' ?^ .""''' ^^"«" ^o" 
-bject. I should thinrthat th^ J '/"**^ "P«^ this 
be derived from the crea ion n/ ^''^"^^a^tages that might 
be sufficiently obvious o^ake 'L 'V'^^^'''''- would 
I sl.o.ld Insist upon it Yot pT'^' """^^^'^^^ that 
pomted out some of them and n. «* ^^'' "^«^°'°g 

J'-^tii: hi.c opinion. tS- ar. ^ .' '"^"^°* I thi°k to 
^derations that might be addedVf?'^'..''"' °'" t^« ^«°- 
Tbere is of eourse^he grea^ work th!! * "?' "'^"^'^^^'J- 
«n association composed of mem h ^^^^ J^'jU be done by 
e- Pro.inces towards the .^Smlf "^*^' ^"« «^ all 
» great number of subjects ^ th '^ f ""' ^'^^^ "^°^ 

"0 substantial obstacle to hefr be-* ff /^^^^^ ^^'^^ i« 

'f^elf would be an 'mmens > „ , ! "^'^'^ated. That in 
-'o^l^t all of us learn s^e bin of tT- P"' *°^' -« 
^w systems of law differ L^-^ "'^''^ *h^°^« i° whioh 

; of a nature to e "^b j! if p:r:V'°" ^'^-''^^ "^^^^' 
fban we do those particular L^^. "^ appreciate better 
f eially famihar,'; tLwUc tT' ^^'^ "'^^^ -« are no 
''f J in our daii; vocatbn "an. V' °°* "'^"^^ "P°° to 
."•^'•'^ for the lawyer of my"C V,. ^^"*"^^ to say that 
° deal m the main so f«r „ F^f '" °^ Q"^'^^^' who 
-f'^ are controlled by the civP / ^'-^ ^"'^ ^^ «"^i««ts 
^y^tom diiferent from that wb ^'^ '' '"°'^™^^' ^^th a 
P-vinces, there would be an advtt'''''"^ ^" ^^^ °ther 
an^harly with those who are nrl.rr^' ''^ "^^'"^""^ "'*>'•« 
'^y. and learning from them „«?.'"""' **^ *h« ^^"''non 
="*=^'a!e knowledge to aZoo^^ ir *^"^ P^^ ^ical and 

^^^«t .stem, I vfLure to'srl > ''T*''^" ^^ *h«* 

to say that it might not be time 



[vol. 34 

unduly lost for the common law lawyer to devote time to 
gaining knowledge, which could be gained without great 
effort, if he was brouglit more froquently -ami into closer 
contact with tliose of us who^e first mistress is the civil 
law as we have it in the Province of Quebec. There are 
good things in both systems, and I suppose there are de- 
fects in both systems. If we could learn to borrow from 
each other that which is good, and by the light derived 
from one another to correct what may be defective, I think 
there would be a great advantage result to the profes- 
sion as a whole; it would widen our ideas and our con- 

Sir Allen Aylesworth this morning pointed out that 
their Lordships who presided in the Judicial Committee of 
the Privy Council are necessarily called upon in dealir:;,' 
with the cases that come before them to study and to mak ■ 
themselves masters of different systems of law, and that 
that fact placed them in a position where he did not hesi- 
tate to describe them as superior to any of the men that 
we can provide at Bar or on the' Bench in this country. 
If that be true, and I am not here to question it, how 
■much may we not hope to broaden our conception (aiitl 
everything that tends to nake man broad minded tends 
to make him a better lav._ cr), by closer and more intimate 
association between the member3 of the different Bars of 
the Dominion, those perhaps particularly who practice 
under systems that differ from each other. But there is, 
perhaps, a stronger reason even than those that have been 
invoked; I do not know whether my observation of wljat 
goes on around me, not only in this country, but in very 
many countries of the world, is absolutely correct or not. 
but it has seemed to me that in our day there was a trnifl 
in the direction of diminution in the minds of the gpiitral 
public of respect for the law. We have boasted, ami I 
think in thj past boasted consistently with truth, tliat 
absolute respect lor the law was a characteristic of peoples, 
who, like ourselves, had the advantage of living under the 
British ystem of Government. It seems to me sometimes 
that there are indications that even among us that abso- 
lute respect for the law is perhaps not so strong as it 
used to be. It would appear to me that a great organiza- 
tion composed of the elite of the members of the Bars of 
all our different provinces might, if they got together and 

".aintain and to resto 7 .f fl,l?f ^" ** ^^^"^ ^^»' *« 
- "'e part of our people /erS-v '"^""*^'"" *« *''« '"'^ 

'^ ':r';:- ini:^t«"rrtrT r'"^ ^^"' -«- 

nplo. that lie at fhe baX of . '* •f/'"'''?'^''- T''e prin- 
"'- difTor more in ' .than in ^1 "'"''' ''^■^'^'"^ ^''"« 
t''i« country of ours a. wpH .'*"'"*'' ""^ "f*'''- «" in 

our cu.*on,ary law derived L 7, ^'■"':"'' "''"^'•^ '^^ J'«ve 
at the basis of all our Lr^ " '"'*""" "' ^'^ ^'''^'^'' 
customs of the pe pie is Th'at t'"^ "^ *'^^ '' "P°" t^« 
people in the o^in ; "rd to t """•' '"*"'*'«" «' 
«^as unjust, and if such an „« .''*' J"'* ""'^ '^hat 

^nn, the attention of the ZZT'' ""'!!' '"^«"" -"^d 
and by its studies and tt S ^ .5^»"«"y to that fact, 

^i^ht n,ake -s the re^u t of tZ' H-''^* '*^ ^•^'"b"« 
home to the minds of the Ll/jf/*",'^'''' ^""^ -^ibly 
not constitute merely of The^ n *'•! '''^'- «" ^''^ ' ^ols 
legi-^Iature that may or mlv nT "''n'""'''"^"*« ^^ the 
!>}• a proper vie^Tof wh«T ^ *. '" '^' ""''' ^ in«P'>ed 
great bodv of hi law under wT* " ""^'"^*' ^"* *^«' ^he 
^.-t- that has soiglt stpiv to :T-T'T ^""^'•^'^ ^^ «» 
«^ between man and LT fK^ P"* '"^° '^''^''^ P'-^ctice heart bTthf Great Cw P""7^PJ-*ed in the 
tingui^h between what i^usfand '""'''' *^^"^ *« d^^" 

Purposo of our study look d It I, tb^r^'' '"1,*''* "'^ ^'^^^ 
^^e wl,at those princip es are "'d ^h T '' ^''' *° P'-'^P^^^^ 
are cfTcctivelv nnf in+l *'^:.^"^ ^^^n to ^oe to it that thev 

^iti.o.t d:;ttrnTf%c',:oS^"\T^^* ^^ p--^' 

^'deration, that mJn^ 21' ?f °°^>' *« the one con- 

^'^ '--'^- SucVotnizTtTonTtb r^'.r *'^ P^°P'« «^ 
to a roalizi.g sense of whr;).f i ' "1'^^' ^'''^ "^ ^^^^^ 
-hich the old clvl We'\«. ? '"' ^^'^ '•^«^'^'"^ ^^«"«« 
ti^e law n« lex Tut wbTn .1 A/^/'' ^^^^ "'^^^ talked of 
*^«t .'Pirit thS ts ;?evailed a^nd Ifa-f ^^•n ''' "°^*' 
"'^n province amon/our fLI ? . ' '*'" "^^^^ ^" "'y 
^ho deal with o^r Lw a. w! r -h'"^' '""^ «"'«"? those 
Wk of the law th.t we nJf ' 1^"^° *^"^- ^« ^^ ""t 
ay correctly, but the general view implies a 

-, ! 

<' r 









. \ 



[VOL. 34 

Dositive enactm3nt of the Legislature; we speak of it asje 
ri he right; and if we could bring the peo^e of ^his 
country to realize what is the real substance of it all, I think 
r would have made a great step towards bringing those 
peopTe back if they have strayed at all, or preventing them 
from straying from the implicit respect for and confidence 
nSe law of which their fathers before them were so proud, 
and of which, as I have said a few moments ago we have 
been so prouk to speak of as prevailing among the people 
who lived under British systems of Government. 

There are other things besides the Chairman's speech for 
which I have to be thankful. I have to express my admira- 
11 and my appreciation for the very able and very interest- 
higd'squisition of my friend Sir Allen Aylesworth this morn- 
4. I know that you know him longer than I, a. 1 you 
appreciate him as well, I will not say better than I. b^^ 
cannot help expressing my gratitude to him. When a Min- 
ister of Justice goes out to enjoy himself m gatherings of h 
confreres of the profession: there is, as a rule, a ghost th 
stalks at the banquet, a ghost that wont down. I ha^e to 
thank Sir Allen Aylesworth for having laid the ghost or m 
his morning. He said all the things that may be pleaded 
as exTnuatfng circumstances for the unfortunate Min.s^r 
of Justice who has not increased the Judges' salaries He 
aid Sat ghlt most effectively, and for that I have to than 
him most sincerely. Then this afternoon we had two most 
it would not be proper to speak of them as ewb 
because they were not so, but because their characteu.ti 
was That of'being something better than enjoyable tb^ of 
being instructive and serving to teach things that, of co e, 
aTractising lawyer does not forget, but we People -l-^r 
away more or less form the exclusive service oiv.^\^J are 
apt to fo.get. I must say that Sir William Meredith. 
s?^lni us upon the Workmen's Compensation 
shewed an absolute grasp of the «f ^ect, and was j cl ^ 
that it enabled us who have not had the advantage ^^ u ^ 
ing it as he has, to at all events appreciate ^^^^ ^ / 
principles underlying the proposed law «J^ J^^^^J^ed 
Tome sense, at all events, to judge ]ust ^^^^ .^" f^^^'!^ fput 
provisions of that law would meet the tequirem "ts e P 
it to us in such a manner as to entitle him to ""^ ?^ ^^ ^ 
;.s for Mr. Justice Eiddell, weU really, I /m a* a b^s w 
to say. We sat there, and we listened with rapt attentio 




olioS'uporJhL^'^ l-^^^-three different 

had been found hytZ^uLZTH;" '' "'"'^''"^ ^^^^ "we- 
ather circumstances, St have T '^"''"""^ *^^*' "°der 
did that quietly and ^thout a„v "'' *" ^"' «°^ ^^ 
gave us every date and every ,i7 T"'°* ^^«^t' «"d he 
and so, for myself, llatl thlT?!"'' ""'^ ^^^^^^ "««^e; 
Goldsmith's I>esert;d yliC:iKZTaL^]C'' '^ 

a^«^ir:r:i[^: sX:r :r ''7' ^-^ «^ - «- 

and interesting information that ?" '^ ^'^^ ^«^»*ble 
all came away thorough Iv^ he conveyed to us, and we 

Me thathetoWus7us£Vr?ff ^"^ ^^' f«^t that the 
Jith which he clZTi^^l, :t^^^f;^^ aspiration^ 

tliat my day has been a day otZT ' f ^°"emen, you see 
that I have to thank ylnV ^T"" """^ '^ P^°«*' ''^^ ^^r 
the Ontario Bar AssoSion ?\"^""?' «°d the members of 
of the Law Society, be ausei havr;? '" '''°^ '""^ ^^"^^e" 
'•" this, that while i was oriJina'Iv ^'^" 7^'"^^ ^^^tunate 
tate of the hospitality of the On ! -""T^ *° ««™« «°d par- 
going away having pLtakfn in ,„ "' ^'J Association, I am 
of the hospitaIity,LuitoVthe sfr T' ^T""^ "^^^-« 
Benchers of the Law SocieVas weH So tZ T^"' ''"* °^ *^« 
ing bee, privileged to be thl g^elt of botVf h ^" '^"^ ^"^- 
f tions, and I may say that wh if T ,/'' ^''** "'•^«"'- 
do appreciate most highly the hnt, T^.^ '^^''''''' «°d 
each of these associatiot^'app t J the hoT '""^ "'^ ^^ 
•Joublj because it has come t^ZTT 1 °"''"'' "'^''^ than 
tio'^'- I am quite satisC tha^ H *^'f ""'^^-^ ««««"«- 
jork that the Law So etv and lb « ^' """^ '^' ^^^** 
fession, the great work wLh ,'^*^' f"'^"^ ^« ^"'^ the pro- 
Profession in th province th'f-''' '' ^t^ officially the 
'"/'•« ^'/7. to call ?hem skir^f^V '"'"^ ^"'•' ^^^''^ ^t be 
Association on the ouWde t^ ^°^ '^"'"^"^ ^^ the Bar 
Joth associations, and I am 2lT 'T. '"^ ' ''''^ ^^'^ b^ 
e good work that iL TjyfarT" ?''". ^'''' ''^''^'^ ^^ 
'^^^^ doubly proud of havTn/bl/ ..''' ''*"^'' """^ ^ a'" «>ore 

It 'l-i 

i * 

t |l 



[vol. 34 


for having so ill requited it as having ventured to overstep 

^ir.^^""ol Z«M.g ?n .et™ for ,o. Hnd- 

ness of heart. 





il'at there is a« yefn one fll"?n"°' "^^^^ *^« ^^'^^ 
m England and that the old dpW ^ !^''° "^ *^' ^"^j^^'t 
survive. Havinff snent L *^ *°^ questionings still 

-rion of potenllTwye'sTnd r '' 7u^'^« '^ ''^ ^^-^ 
i"g to make then. S that theT' ^ ?°P'' ^"^«^^«"r- 
of the highest dignity cSlint^^^^^^^ ^T'' ' "®'^« ^«« «°e 
liberal description and the iv>.«'^'' '^ ^^^*'''' "^ *^' °^°«* 
I rejoice that divine discontfn. '*'°^"** ''^ °»°^«"ty. 
lingers in the Old (Luntrv j * "^'^ *^^' «"^j«^* «*'" 
lot to gain a slight insiX ,-nf lu ' "moreover, been my 
cation fdopted itwZt'iZt S'^ °^ 'T\''^- 
there appears to be dis8fltiBfl+- \ ^' ^ '° England, 

. apward'Lvement Sse tn Ir'°.' ' *f "^^^^^ *«' "^^^ 
contribute what I cmtoZZZtl^^T' ^^^^ ^^^ ™e to 
rest and, as far L L me^lLs to'at/: '?f ^ ^P^^'* ^^ "°- 
thing in the way of an ameSratVe Tth^^ -ggest some- 
touch upon the framework nf ITt • . "^^^^^ ^ ^^b 
and not at all nponZtetLllT"'"^^^ «^"«^««°' 

ledge (as there can be buTiM. . '^^"^'^S legal know- 
connected with thrphase o'tL "^ * -* *^' **'^""^*''' 
factorily settled in Harvard Ind 't^^'*.^""" ^^^^ ^«««- 
versities). harvard and other Cis-Atlantic uni- 

quiries should be unLrSen I-'"' P^^^^^inary i„- 

^-ercd, the rest ofTel^^^^^Z'^^^^^ 
n>atically, unfold itself Th '*''^y' ^^'^''^t auto- 

What manner of man should r^",'"'' ^ ^^^^^ *« "« (1) • 

the content of theTwyt's'^ Th^^^^^^ ^'«* '^ 
?««fe? the second 91m Jw? ^ ^^^ ^'^"^ ^"^stion is 

'""«; teen .t the Md^'T "', "7 "'= b? Mnipu- 

r;-.-- tS ?— ^^ 






[VOL. 34 

not long tolerate a breed of lawyers whose only ambition 
was to rise high on the scale which is marked with the 
-lames of Dodson and Fogg and Uriah Heep. 

The true law)-er, in my opinion, must be a humble and 
toilful (" painful " is the better word, were it now permis- 
sible to use it in its older sense) labourer in the service of 
practical justice as she shews herself in the legal principles 
and institutions of to-day, and also must in true zeal for 
her honour anxiously toil to the end that she does not fall 
behind the changing needs and standards of a changing and 
advancing civilization. To fulfil the first requirement he 
must not only be well versed in the laws of to-day, but also 
must have a grasp of the elemental principles that lie be- 
hind them and of their life history. Historical knowledge 
is to the lawyer as important as it is to the geologist, lo 
fulfil the second requirement, he must have a sound know- 
ledge of the social conditions, at any rate, of his period and 
country He must not live afar from the practical needs 
of the community, fenced in by any conception of eternal, 
changeless and self-revealing law. To sum up, the lawyer 
must be an educated and honourable gentleman. 

This brings me to the qmntis? How far must he be 
educated? He cannot be omniscient. True, he need not 
be all-informed, but he must be educated and informed. 
The clay undergoes much treatment, ere it takes the shape 
of a cup. Here I should like shortly to set down what I 
think are the minimum practical qualifications for a lawjer. 

1 A sound general education, embracing Latin, French 
and German (or at any rate, the two first) to the extent of 
being able to read these languages without any great dit- 
ficulty. (On this branch I have here nothing further to 
say, other than to remark that the practice of setting par- 
ticular books for preliminary examinations defeats its own 

2 A sound education preliminary to what I have later 
given the name of information. This preliminary educa- 
tion ought to consist of (a) a course in political economy, 
practical and historical; (b) a course in jurisprudence; c 
the study by the law student of some system of law otner 
than his own. preferably the Roman system. 

3. Accurate information as to the laws of hi? o\v 


4. Practice in the application of this information. 




tainfdT' I? •?';:; these ^inimum qualifications to be at- 

rr "-^ '--'/ ''' ave.age?aV^stdt tn teet 

hi^protsLTaTa r; .^T ^^ ^^''^^-^ ^^^ entrLceTo 

inland Thost of 5 '"* I?'"'" ^'•°™ ^"^ ''^^^^^ «f learn- 
ing, ana a host of otliers, the answer would be easv enoimli 

The propose-^ course can, however bp mnrln t„ a* • 
The demands that may be legitimately madP upon anv 

tal^e f 'r "r?"^'^ ^'^'''' ^'' "^"«t b« allowed 

>,« fi! "'^.^^^t^a-^^ral degree; if he cannot manage even 

Mhen the onus fails upon the Law Society to which he 

eks admission to see that he is not more seriously handt 

capped by his inability than is necessary. ^ 

th/» ^''f '^ *l^«t' "iealing with actualities, I do not regard 

he actual attendance upon university or o her lectures a, a 

sm gnu non. If everything were as it ought to be suclt 

ZT^r:-'"'' '^ '''''''' «« indispensable and is Tn 

1 a 1 fir' ^'"'^^ \''' ''''''''■ «-t - the other 

nd inform tlv T ""* ''"'^'^ ^^^°' ''^' ^«- '-^^'^^ 
iiu mtorm. only too many can do neither There atp, certain types of mind (as noted by S Albert 
et tLVf'm b';-««^- above^eferred to') XtL^ 
«ractmg from books more real education and inspiration 



[vol. 34 

than they can draw from an intermediary. In this con- 
nection, I adopt without hesitation the words of that high 
authority just mentioned. 

"Whatever may be done towards a more aggregated 
system of legal studies, with the indirect educational and 
social advantages of intercourse and inter-communication 
in the search and research for legal knowledge, there must 
■ be no surrender or restriction of the right of the individual 
student to work out his own salvation in his own way if he 
thinks proper, and every aid and facility should be given 
him (shall I add " or her"?) for this purpose by both the 
schools and the university . . . the continued, undimin- 
ished and unrestricted opportunities for law students tc 
obtain the external legal, arts and other degrees of tho 
University of London is a matter of vital moment to the 
Society itself and its work of legal education, to its students 
who prepare for the examinations for such deg^raes and 


I would lay down then the rule that there must be this 
preliminary or educative or university period, whether the 
same be spent at a university or law school or in self-prepar- 
ation for the examinations imposed by these bodies or by :■ 
law society. The exact relationship that should in my 
opinion exist between these different authorities I leave for 
examination later on. 

T e object of this particular pei'^d will be in the main. 
in the words of the President of Harvard, "to impart, Bot 
information, but power." The student will therein gam 
breadth of view, the mind of the true lawyer, a true con- 
ception of the elemental ideas underlying all local law; 
historical and comparative study will give him a grasp o^ 
legal concepts that can be gained in no other way. lo tJin 
period there might lalso be assigned in addition to Juris- 
prudence and Eoman Law an elementary study ot uaer- 
national Law and of the history of English Law as hcmg 
more akin to the other subjects then dealt with than to the 
subsequent study of particular law. 

During the university period there might also with ad- 
vantage be undertaken the study of local law itselt bu 
only in its generalities, I mean, only in so far as it wiu 
naturally fall into its place in the study of eompnrntn 
jurisprudence, its treatment differing in quantity and not 
in quality from that accorded to other legal systems. 




nn/?h^anTl.rtIli: te^^^^^^^^^ "'^t of information 

and at first sight ilcoZ^L^"'''^ "*'* ^'*J» conflicting 
'aw school and tie demal of"?.'' *^ '^^'"^°'^« °' th? 
The conflict could easilvT nK ^^^'/^^'^^^^'^ P^ncipal. 
f e. As n^atters atantit isf bel '^^ T' ^^--<J- 
dent is too often required tl t \ !"^^ *^"* * 1«^ stu- 
of the law, mth a Slomerr-?^^^^ *^' ^^^^"^*'«« 
lengthy and often un^^sn St ^""/^ '" ^^«°°««« by 
cannot give a constan InT^ "^"^ ^'^ °ffi«« '^ork- He 
t"res. The chmTness a«.? "^''°"' *"'°""° *° his lee 
the class reacts ^LefhSalf "*'""*"^^ ^°^''«* "^ 
teacher. Indeed, if it failed ^f^ "?u° *^^ °^««* Sitted 
enough of his unfitness for J •!°' ^^''^ ^''"^^ be proof 
not be good. The p;ob:m's a'^dlffi". '''^ --Its'can! 
present no insuperaWc diffi^nl ies ftt '°'' ^* ^^^"'^ 
the law society, which controtSaster anr"'""^^ °°" ^'^^ 
Were such a sohpm^ "« master and man alike. 

lowed, we would tra"yL'rof"d"1-'"^'°^™'^ ^«^- 
nse cone-like from a broad b«! n/ ''^"'=*V'''* *^«* '^o^^d 
passing through the iuformatir nf •^^"'f'^ Jurisprudence, 
sharp point, well adap^edTo d '^ ^T^' *" ^'"^^''^^ in a 
i'^ hand, all in a st^te of stable em T^^ ^'^''''^^ ™««er 
period the student would learn whT^^^^^^ ^" *he first 
"o^a^tV what in « contracT'' i^"] '' T/^*^ ^" *^« '«J«« 
P'«h between the EngHsh C„T^ - '""" *^ ^'^*'°- 
Freneh "cause"; in the fecondri^^^^^^^ '^"^ the 

requirements of he Statute of /!? ^' ^°"^^ ^«"° the 
specially pleaded, wS i'n th!Tv'/°^ *^^* ^* ^"«t be 

would teach him the inadvilimv of . "ff ^"P«"«°^« 
been taught. "advisability of not pleading as he has 

the Me's pur^uiVL\i:'vaT'' "^^ '' *« ««-^^inate 
that they dovetail in^o one aTothlr'^'pl^- , ^^« '« ^o «ee 
he primarily upon the benchp^f .^^^'^^^ *hese duties 

Profession, in which the tud J <5^ ^'°^ ^"^' '^ '^' 
T eir task must needs be a de^TcL ''''' t° ^' «°^°"«<1- 
'"te my periods and tiy to ind l! ! T' ! ''^" ''"'«?""- 
accomplished. ^ indicate how it could be best 

!«•. and .Ilotttag twT ?J,' "2"/"°^" '» «'« 

inese to the educative period 


■ 'I 



( T • 


t (; 


ana three to ^^ J^^orrnsi^^ ^^Z^' 
combined, I would '^?e''\^^^\X^xl,^l university, if 
enquire into the '«q^"7J!^/*J?2d therewith, should 
any, for its degrees, -fJ'^^^^^'Tl^^^ knowledge of 
Bay to the intending 1«^ ;t"^7;^^,t esesB. This you 

^""^^tTher bvTaS unCTity d'egree (internal or 
may get either by taKing » ^^^^ ^^^^ ^ 

«le™.„; if you -;»^;'>7J'rLJ... 0, .tfining 
degree we will 'PP^^ j"" „^ : . ^y passing an examin- 
the same result .y ^^^^^^.^J'.^t' university examination 
ation similar in every way *" f ^ ^"^7 ^ ^uh lecturer 
and to attain that result we wiU provide j ^^.^^^^^y .. 

Bimilar to those you could .^^^^ Jjf ^/^.^i to conciliate 

In issuing this XX> to it^^^^^^^ (and their 

those who pin all their *»} ^' ^o^'^ j; ^ ^.j teaching 

contentions ^<>«1^^\^"?** S^l%Ct "re ««* ^°* ^^'^ "^ 

'"'•^ r bei 'of t ':^.t^^^^^i '- ^ -T "■ 

to in the best of tne ciass; y r external degree. 

■"■"V'.lnta ."a the CBhoUtag body would per- 
enough a standai auu , . jprnur the curriculun 

haps be well adv.sed to f^^.'^^^^d^di imagine that in 
of specialists in ir^^^^rfrTufveTsHY wouS render ic 
most cases the dignity of t^« ^^^^^^n^academic and 
impossible to accep the ^p. ^^^^:^^^^ ^ far as 

non-profesBional J\^^ .^ concerned), however dis- 
the profess on of teaching ^^^ ^^.^ ^^„^,^ 

tmguished m the fie W « J ^^^ ^^^^ particular period 
is confined to the currituium ^„ -^j Indeed, with 

which I have dubbed the educative P-^^'.J^^ :t;olling 
regard to /^s paxt^u^ar per^^^^^^^^^ ta.e 

S^^^-dS^^^ririTStt. a. intern. 

Xn reaching the informative p^^^-^ J- .^ 
ir many cases a difficulty which ^^g^^ jf/^J^t that 
of compromise and conference _ I refer to ^^^^^^^^ 

the curricula of some ^^^^^ ^^rovl^ce of a law society. 

n^n what is more P-f/^^J j^^ ^Tp^^^^^^^^^ belongs to 

The educative period is that ^^en pt 

the university, the informative period to the 




^t^trrt 'r^:ci^' t^-^ ^^^^ of such in. 

law school, then itTj^'/bl^w:; o'r T^^ P"'^^-"'^ 
with those who really know tlfJ^r! *° *"^« «^"°««1 
a lawyer and i„ most cales will - i • f ^-^q^^renients of 
ti'ese requirements hel^tnmTl T""!"^ '' '°«'«^ ^Po° 
Hell for the law socier wherp in ' k?^ '^ '^"^ ^ «q»«"y 
university the du^ of w^lk '/ 1 1'^ ^^''"^ °^" '" the 
^iderata of the sode^ Thl^ °"* ?' ^^t''^^ o^ the de- 
«P upon such a basif woSd r"'"'*^,^'"^^'*"^"'^ ^^a^n 
by the law society in l^l ZZTj^^' '7 "^^P«- 
animation and teachinir of stn/plf '"f ^at^ons for the ex- 
another cannot take aVn versUv d.^ ' '°t °"* ^^'»««° «' 
an agreed scheme it miX we L ..^f^ ^° ^"^''^S <>"* 
to lengthen the infor^iffvl at th^ "'** '' T'^ ^^^"^ ^^^e 
period. This can be done all t^^ "^'T '^ *^^ ^'^"^'^"^e 
necessarily be somrreJerenc to th^vT^ *^"« ^"^t 
earlier period in the iLtnres of fhl '"^i''^-*-°'»«er of the 
teacher of law will not nay cannot Tec'f '"t'" ^ ^°^ 
'ng out to his pupils either 7^ } "'^ '^^^^"t Poi°t- 
t;ation, the -ifty^fVldle ^fl^w "^^^^^^^^ °^ "^- 
phenomena to order and coherence 'W«.P 5 ''"^"''' ^"«^«^ 
has it). No more will he be able fn ^ , "'"''"'' °^"*°d 
-contract and tort, wi^out Se ence'r^^^^^^ 
histories; pactum nudum and ^I ..!^'" ^«8P«««ve 

-Might on the law oT crntaS^bl i^: ^^" *^- 

the DtSnXrd'r^^ ^""^ «^ ^^-^ St-dies for 
versities and the iTTotietLT^^^^^^ '^'"^ *^« --- 

-ould I feel assured es^ 'S Trj^f- * *^^°^ ^^^^^e, 
monious and logical scheme nf 1 , T^'"^ °^* «* » har- 
Put into effect, wonidmTr han^rl "^f ?' "^^■^^' -he° 
dividual self-surrender Tv^vS T^ *^' *'°"h'« a^-i in- 
a central authority '^''^ ^° ^^' establishment of such 

Waltee L. Scott, LL.D. 

f<^^ "Einfuhrung in dt i.L '°*V°^ ^"^^^^^^ ^«^ 
^«*-on to the Science Law ^^^l^t^'^'-^^nschaft " or Intro- 
ocience Law, designed to furnish a student ' 

t • 



[vol. 34 

•• at the threshold of his course, with an orderly and clas- 
sified survey of the whole domain of law— primarily his 
own local law— by way of preparation for a later more de- 
tailed study." KefTence may be made to Arundt's Juris- 
tische Enzyklopauie und Methodologie and Grueger's Ein- 
fuhrung in die Rechtswissenschaft. It is to be noticed that 
.•>ach state of the German Empire prescribes by law "the 
atudienordnung" or course of legal study to be followed 
by anyone seeking to practice in the state. Such a course 
of study consists of Vorlesungen (lectures) and Ubungci 
(claases) to be taken by the student in a prescribed order. 
Is it altogether loo visionary to express a hone that, er(^ 
many years have passed away, a Conjoint Board of Studies, 
formed of representatives from the universities and from 
a vigorous Dominion Bar Association, will lay down an 
obligatory Studienordnucg for law students and see to it 
that he is provided with an adequate Canadian Introduction 
to the Science of Law? 




Glasgow Sheriff Court is cited by the Lord Chancellor 
as an instance where one of the lovrer Courts may with 
entirely satisfactor results try impt.rtant cases. Hia re- 

Slv ir^r^^- Z'^T ^''''' "'^ «'^^«' Commission on 
Delay m the Kin^-g Bench, hut thty are given to tho 

public for the fir.t time in the hhie-book containing 
the evidence submitted to the inquiry. They arose in this 
!,Tmv r !:"'"".''''«'°° «'"« e.^amining Lord Hahlane on the 

ir.ctly 1 mited jurisdiction of the County Curts i„ E„,r. 
Jarid, and the consequent necessity of sending actions in- 
volving as a rule more than £100 to a Judge of the High 
Court County Courts, further, do not possess the power to 

ry libel slander, reduction, or breach of promise. The I^rd 

Ir nfP'T^"'" "'""''^" *^'«t t''*''^ jurisdiction 

added that they were tried without difficulty a the Sheriff 
Courts m Scotland. One of the Commissioner, purled n 
uiries further into the jurisdiction of the Scottish Courts. 
Lo d Haldane, who, although not a Scots lawyer, has inti- 

7onnZT 7':f' ^'''' '"^■' ^^P''«^ that the Sheriff 
Court had unlimited jurisdiction. "Some very important 
oe.. he added by way of iliusfation, "are fried in the 
Sheriff Court m Glasgow, and the Sheriff Court has grown 
up to be a very importan; centre in Glasgow. The Judees 
are men who are picked for their ability. There is a lo!al 
Br which consists entirely of solicitors-occasionally coun- 
a e" AnoT ^'^'°^"'-^'^-«°d they try very important 
cases Another passage may also be quoted, nameW_"I 

" u7th el" -ff "^"^ ^.'""'^ ^^^P«^« ^' -^'b- 
ness, but the Sheriff is generally a big man. The Glasg «r 

K in G? '^^ '"'' 't" '^"' '"'^"^ consisting o7so- 
Jicitors in Glasgow, men of great capacity." 


JnA^^eLfitVTr ^^1 '''^''''' ""^ ^^^^ Haldane that 
nee to the tn^!^ ^v^ ''^''^ '^' "^^^ ^''^'^'^ ™P0^t- 
vice The 17T "^ '" ^'^"^ «f*" '' >'««"' ser- 
cptindkL^nffi '.T- ' '"•««* inducements to ac- 
cept judicial office, and the 1. Chancellor deprecates any- 

VOL. XXXIV. C.L.T. 14 






[vol. 34 

thing which wotild make it bulk le*> largely in the mind of 
an eminent counsel who is considering whether he should 
give np £15,000 a year in order to take £5.000. The atter 
fum is the salary of the Judge of the High Court It ..n 
tribute to the spirit which animates the hnglisl^ Bar that 
the Lord Chancellor is unable to point to a s.nglc mstanc 
where anybody ha. refused a Judgeship on the g^;»»nd tha 
the remunerate is insufficient. He has. he says, known 
of members ot . Bar refusing judicial office because the. r 
amltions were directed to political advancement, but thn 
ig quite another matter. It has been pointed out tha. 
£5,000 now is not an equivalent to the same sum m 183( . 
when the present standard of judicial salaries was fixo-l. 
Lord Haldane, howeve., thinks that speaking fn'^'aU) 
£5.000 a year is very good salary to pay to anybody for 
public setiices. "You think nobody is worth more than 
that?" asked one of the Commissioners. I am inclmed to 
th^k no one is worth more than that." replied the w.tres. 
"Not even the Lord Chancellor?" the quest" jer pressed. 
" I make no exception," Lord Haldane answered. But Lor.l 
Haldane gets £10.000. 





The Dominion Railway Board ha, again givon iudirnionf 

"form telephone rates throughout the citv referrin,r n«r 
ncularly to that part of the city known a'^CrrToront" 
with Commwaioner Mills digscnting Toronto. 

According to the information received t! chairman. 

oar ago by the agsistant chairman, Mr. D'Arcv Scott nn 
he ground that suffident time has not elapsed J aUe ;on 

imT'th^'l^"'"''"*- ^^ *'■••' ^■-"«' -aint in d tX 
>me, he chairman was evading responsibility; we believe 
l.n .s std domg so and upholding what is one of tlTe weaS 
judgments ever delivered by the Dominion Railway Board 

' n-ore reauisite H ° *'1^"'T "'"^'^''^ common-sense was 

while it is niihuT ?''''"°^ ^r^^'"^^' "^ '^' '«^. «"'! 
J1\L E ? ^^.^'"'^•ne a d'^sire to support a confrere 

rrVd ?.^ /"T''°^ '^"^ '^'^ "?>»'«>'' *hi« desire can be 
Xre of f' ""^'^ f "/^' "'^" ^•''^ «^ ^he scale is the 
welfare of a large part of the community to protect the in- 
^rM of which is the raison d'itre of the' Dominion lilLTy 

bretlJe'nTL^' *''t/'^J««» '^ ^ burning question with our 
ceted from EoJk f °' ri, ?^ ^'""» ^ information re- 
su b ill Z *J°«^^?* q"«J'fl«d to -peak, it is owing to just 
such Ill-considered judgments as the disallowance of the 
apphca ion of the city of Toronto m this matter that t 
responsible for much of the difficulty existing in the United 

It is stated almost as an axiom among the legal frater- 
mty of the United States that there is litfle or nfcrmc s" 

tZillr '" ^r'f' r'^^^ ^^ ^ ^^« '^ indisp^t'i; n" 

t would be a great pity if ever the time should come when 
conditions should be otherwise 

be Zmld'fni^^^' ^ ?^ ""'*^ ^°^ '^ *^^ "ty should not 
be entitled to the same telephone rates as those living in the 

"er ?fonT- "'."J^ '' ^'^^ '' "°* ^^^^ *be sarn'on! 
c tv in^. '%°'* ?«"'™^»««'^ ^gain^t one part of the 
to d rZ"/ '°1i''' notwithstanding the straw reasons 
flmsv r!!;r T *\' """^^ '^*=^*°g«' «°^ °ther equally 
rZw T^ f ^ "P ^y *^« telephone company, it is im- 
Pos8.ble to understand. Gas-mains are laid and gas^oTd 








[vol. 34 

at the same rate in <he n-^rth as in the east or west or centro 
of the city,— electric energy is likewise tleliverod at tli'^ 
same rate,— no allowance is made by the assessment di'part- 
ment of the city in its valuation of property ^n the north,— 
no extra discount is given in the payment of taxts,— and 
why is the Bell Telephone Company permitted to charge 
double and even treble the rate per telephone in the nor- 
thern part of the city, as that charged in tlie east, west or 
centre? For nearly two years the Bell Telephone Company 
has owned a site in North Toronto, presumably purclia«id 
for the building of an exchange, and had the judgment of 
the Railway Board been ps we believe it should have been 
and the city's application allowed this new exchange would 
speedily have been built and the visionary boundaries sup- 
ported by an equally baseless and puerile reasoning would 
have been swept away. 

The President of the United States in his message t" 
Congress advocates the abrogation of the measure whiili 
granted immunity from tolls to the coasting vessels of tlio 
United States while levying a charge on the vessels of otln,' 
nations. The United States in dealing with so important 
a question as its treaty obligations (and as those whose know- 
ledge of the nation was the most intimate always believed), 
has decided the question, to use the words of Mr. Elihu Em.t 
in his address to tlie Senate, " in a manner befitting a great 
nation/' and the privileges of the Panama Canal are to W 
equal to the shipping of all nations. 

In a people composed of all nationalities, among whir'i 
the majority of the new-comers have been subject alwavs 1 > 
oppression and repression, there undoubtedly will be a mi- 
taking of license for liberty, policy advocated by tlie 
yellow journals, which pander to these sentiments, for a timo 
has a great vogue, but the solid, sane reason and apprecia- 
tion of the true American eventually triumphs, with a r( - 
suit such as obtains in the matter of the Panama Canal 

^^^i] i-RAVD OF AGENT FRirn «» 


F^HD 0. AGENT, F..^, op P^J.^^IP.^. 

ought to"sur;,!o'::t,j?re"otr"°"f ^^ *^ -^-^ ^e 

i'olding out the agent ToV.1 t" '"^' ^^' ^""^rae by 

The above rulfhld it '""^ " ""''^"^^- ' 
<;- upon a sound pi ;,f7;;- '-«,- strict justice 
the affairs of every day Wp. , f " P"'^'^^'- ^^^^hout it 
^"^'^f y of a pri/ci :[ J^^ ^:'i-J '- --ied on. The 
n;;>ch litigation and many contlictrf .\ ^'^ '»^^"*' '^'^'^ 
ally been settled on business liJ on ^^ J»;^gn,ents, has fi„- 
n^ous decision of the Court ot^??'"' ^^ «'^ ""^ni- 
1-12. For over two hundred mr t ''T'' '^'"'^^^^^ '- 
of principal and a-ent haT K " '''""^^' ^^ ^he law 

'i'he profession haH with sat f" r ' ''''' """^"'^'•i ^tate 
''-i-'ion an importanttgal tS? r? '''* '^^^ ^'^'^ ^-en 
e-l which from the great abS t " f t"^"'"^ '^^^" ^^«'^'- 
constituting the highest CournP a ^ ''"'"^"* •'""^^^^ 
v-.sal respect. A brief revif. ^PP^«> ^""^^^nds uni- 
- ;-^M .ay at iLTj^:^--:^^^; '^^^"^^ -- 

in the year AD I7nn ■ ^^i"g. 

deceit, it was held,' by Lord Thi Jt'1-"'" "" *''^ ^«^^ for 
^^''>/'«^^, 1 Salk., page 288 th ■'' ^'^^' '" ^^'^^ ^• 

for the deceit of E s^'agent in sem'""^^' ^'^^ — ^able 
of silk for another of ITiJ ^ ''"' particular sort 
»o be determined wafdid he T' T"^""- '^^^ ^"^^tion 
*''e seas bind the pr ncipal when r "' ''^ ^^^^^ beyond 
actual deceit on the part TL ,T7''^ '^''' ^'^^ "^ 
Jnstice wa. of the opinfon th t tt f '"'• ^^"^ ^^^'-f 
"'e deceit of his aconti tb! . ""^ ^'^'^ ^'"^^^ ^r 

"rmter:" for, in the" words f iVb"'. ^n.nnaHf.r, yet 
;o"'obody must be the loser bvtli, A "I •^"^^'■^^■«-" Seeing 
;«t he that employs and put, 1% /' '' ''^ "'"^^ ^^«^on 
J^e Receiver shall be aloser^han '"f '"^ ^^"^^^-^^ - 
■ehim of the great Cluef Ju!h"/ .■'^;'""^'--" ^^PO" this 
for the plaintiff. '^"'*"^'^' judgment was entered 

p«.e'\7TihJ",:t;cvijf/ "-^^^'^^'-^ ^ -^ ^ 

f- V. A.V.«i ;:;:;: .V;?™-^ --, Hke that in 

v?-^e s- r^^ «: ^" tsS i: 




[VOL. 34 

principal neither authorized nor knew of the fraudulent 
Tdu t of his agent. The case -s tried before Mart.n 
B and his Lordehip directed a nonsuit to he entered. On 
^i' fo^a new trll or that verdict be en W fo^plam^ 
fff +>,« Pniirt being evenly divided: Pollock, v^.e., ana 
W% B b"ng of 'the opinion the rule ou^it to be abso- 
I it'o e^ter vfrdict for plaintiff: Martin, B and Bram- 
well B. d Bsenting, the rule was consequently discharged. 
Wui B., in delivering his judgment, thus pithil.v 
dealT wUh th question-" If this action does not he gainst 
the Principal, ?he consequence would appear to be as fol- 
1 1^ Theman who has reaped the benefit of a fraud com- 
S d I hiTbehllf keeps the fruits in his pocket ; the man 
defr aded in the contract has to look to the intermediate 
p r :; and not him with whom he contracted. If the agen 
n man of no means, this remedy would be fruitless li 
r agent is able to pay he ^-s so without remedy o or 
and the person defrauded is reinstated out of e funds of 
one man! while the fruits of the fraud ar retained ov 

"the"great leading case on this question is Ban.i.1^ 
En^Sk %toclc Bank, decided in 1867. See K E. 2 E. 
t, 259 in which the unanimous judgment of the Court 
^■JnStinff of WiUes, Blackburn, Keating, Mellor, Monl- 
rsS and Lush JJ.), was delivered^ by Wiles, next 
?o Coke and Holt, the most profound master of the Co,n- 

"'"in'^h" lucid judgment, Willes said: "But with respM 
to the queS, whTher a principal is answerable for U.e 
act of hTs agen in the course of his master's business, and 
it hs master's benefit, no sensible distinction can be drawn 
be ween the case of fraud and the case of any other wrong^ 
Thrrneral rule is, that the master is answerab e for e^ ry 
luch wrong of he'^ei^ant or agent as is committed „i i e 
ourse of the service and for me master's hen^^t, thou,h n 
r;;:; command or privity of the ™as-^^J-^- ^ 

ha's been applied'also to direct trespass to goods a i th 
case of l-.olding the owners of ships liable for the a^ ot 
" tei. aboard: improperly selling the -go^ ^-^-;^ ; 
N..tfif,n 7 C B 797. It has been held applicable to ac ion. 
TiZ ImprLment, in cases where officers of rn,hvav 


Great Northern RaU^ay Company, 3 E. & E. 672 30 L J 
(Q.B.) 148, explaining (at 3 E & R n ft8•^^ r. 

Birlcenhead RaiLy CompL 7 Ex \^' f^' \' ''■ 

V \r;^in«^ T> n ^'^'"'Vany, i j^x, 36 and see Barru 

. Midland Radu-ay Company, Ir. L. Rep. 1 C L 13? 

authorized the particular act, Vuf he L^ JuT^h ^^e"t t 
-s p ace to do that class of acts, and he must be answerlwe 
or the manner in which the agent has conducted him'e f 

;; pirhim%'n^> "^^^ ^'^^^ " -- *^^ -^ «^ ^^« -"' 

It will be seen by this judgment, in order to bind the 
principal, the act of the agent, wheth;r fraudulent other 
wise must be done in, concerning and during the cour e"f 
e business for his principal; and further, within the'cope 
of his authority as such agent. ^ 

This judgment settled the question, regardin-. which 
rnany divergent opinions had prevailed Ld many 'conflict 
iDg judgments had been delivered -hether or not fh. 
principal could be held liable for the fraudu len act 'f hi 
gent If he had not authorized it, or subsequently approved 
of it. This contention -^ceived its n-,ni>uil ,•« +u ^^ ""^^ 
of Justice Willes- " Tf , + T I ^ '° *^^'^ ^«'"'^8 
ubtice wiiies. It IS true, he has not authorized the 

rticuar act, but he has put the agent in his X to 
^0 that class of acts, and he must be answerable for the 
fanner in which the agent has conduc:ed himself in do „g 
tl;e^ business which it was the act of his master to placf 

Vhrll Zllf^^'^i T' "°'*'^" ^^"PP^^*^ ^«°^i^'«n. or 

.1 baSes « r. 'I' ''"'' ^'''' "^^^ ^'^y fierce " 
iegal battles— and for his master's benefit " and wb.Vb 

was not finally settled until the year of tLe 10,0'^ ^ 

in! f ''"*"• ^^' '''' '^ ^^'^^' ^- English Stodc 
S^nl, however, met with general approval, notably in the 










[vol. 34 

case of Maclay v. Commercial Bank of New Bmmwich 
L. R. 5 App. Cas. (1874), p. 394. 

The principal facts of this last named case were as 
follows: PlaintilTs were a firm of lumber merchants re- 
siding at Liverpool. One Bartlett Lingley was a timber 
merchant, residing in St. John, N. B., who was in the habit 
of sending shipments of deals to plaintiffs to sell on com- 
mission. Lingley, on the 16th of June, 1868, drew upon 
plaintiffs, and indorsed to the Commercial Bank of New 
Brunswick, an incorporated bank, at St. John, N. B., several 
bills of exchange against cargoes shipped, and two bills 
for $1.00'^ each on general account. 

Sancton, cashier of the bank, whose duty it was to 
obtain the acceptance of bills of exchange in which the bank 
was interested, fraudulently and without the knowledge of 
the president and directors of the bank sent a telegraphic 
message, partly true, but fraudulently omitting a material 
fact, which misled and was intended to mislead plaintiffs, 
and thereby induced them to accept the said . Us, and they 
were compelled to pay them at maturity, as they had been 
indorsed by the Commercial Bank to their agents in London. 
The plaintiffs brought an action on the case, in the nature 
of deceit, against the bank, and recovered judgment in the 
St. John Circuit Court, before Mr. Justice Weldon, in Jan- 
uary, 1871, fcr the sum of .$8,488. Mr. Justice Weldon 
held 'that the sending of the telegram was within the scope nf 
the authority of Sancton. On appeal to the Supreme Court 
of New Brunswick, a rule absolute was made for a new trial, 
on the ground of misdirection, in directing the jury the act 
was within the scope of the authority of Sancton, the 
cashier, and in not leaving to the jury whether he was auth- 
orized by the directors of the bank to send the false tele- 
gram. The appellants (plaintiffs) applied for leave to 
appeal to Her Majesty in Council. Leave was granted and 
the judgment of the Supreme Court of New Brunswick was 
reversed, and the order directing a new trial discharged. 

The argument of Benjamin, Q.C., who appeared for 
appellant?, was so concisely and aptly expressed that it is 
here in part inserted: "The bank, of course, said the groat 
Jurist, did not authorize Sancton to commit a fraud, hut 
it entrusted him with the conduct of this class of business, 
and he conducted it unfairly, and committed the fraud in 
the course of his employment. The bank would not liave 


been liable if he liad committed the fraud while he was not 

lio, n f. ",^' "' '''^P'"^ ^y *h« appellants. The 

a S K.o„ :, f^ "'"' "^^^'^'^ ''^ "^« consideration 
uiat t,aKton lad not been authorized to do what he did- 
but ,f he vyas doing the principal's business at the time he 
principal ,s responsible. They failed to distinc4™h' b 

to transact the business in the course of which the fra,Kl7 
lent act was committed."' iraudu- 

.vithi^'lhelc^'' i'":/""' '^""'"" '' *« ^-'-^ -ts were 
within the scope of the agent's authority, Sir Montague 

Snn , who dehvered the Judgment of theif'Lordsh ps said 

Indeed it may be generally assumed that, in mercantl 

ransactions, principals do not authorize their Tgel ^ 

wrongfu I, and consequently that frauds are^ beyond 

hirther remarked, the best definition of it w s riven bv 

hamb" "« ''•!'"' "^ *^^ ^""^^--^ '^f the E?chenuer 
Chamber Barmck y. English Joint Stock Bank. In con 
oh.ion he said: - For those reasons their Lordshins are nf 
cpmion that Mr. Justice Weldon was right ncWing the 

of'ln::* '' '2''l' ^' *'^ ^^'^^^«- -- with n tl Lje 
not t, 'r'^^'^'y- This being so, the question whe he 
oi not Sancton wns authorized to .end it by the directors 
Iccomes immaterial.'^ ^ airectors, 

4nnl"«/^^^k""^r>'^"'^'*'''" '^'"'*' ^'''"^'-^'^ before the Court of 
Appea, in the Bntish Mut^.al Banl-ing Con.pany,IM 

for deceit L; The Y""T^' "^^ '''"^'^ '" «" -^'on 

or aeceit for the unauthorized and fraudulent act nf o 

servant or agent_ committed, not for the J eS o^ p i. 

a ends '^r'^'^''^ '"* '^^ *^^ -^"-^^'^ - «^-nt's p " 
^ate ends. The case was tried before Lord Coleridge, C.J. 


( , 



[vol. 34 

The jury assessed the damages, and the Chief Justice left 
either of '^e parties to move for judgment. A motion was 
made btioie the Queen's Bench Division on behalf of plain- 
tiffs, and Manisty and Matthew, JJ., directed judgment to 
be entered for them. On appeal the decision of the Queen's 
Ber.cli Division was reversed, and defendants held not liable 
by Lord Esher, M.l?., I^oid Justice Bowen and Lord Justice 
Fry. Bowen, L.J., is reported as follows: "There is, so 
far as I am aware, no precedent in English law, unless it 
be Simft V. Winterbotham, a case that was overruled upon 
appeal for holding that the principal is liable in an action 
of deceit for the unauthorized and fraudulent act of a ser- 
vant or agent committed, not for the general or special 
benefit of the principal, but for the servant's own private 
ends. The true rule was, as it seems to me, enunciated by 
the Exchequer Chamber in a judgment of Willes, J., de- 
livered in the case of Barwick v. English Joint Stock Bank. 
"The general rile, says Willes, J., "is that the master is 
answerable for every such wrong of his servant or agent as 
is committed in the course of his service and for the master's 
benefit, though no express command or privity of the master 
be proved." This definition of liability has been j^onstantly 
referred to in subsequent cases as adequate and satisfactory, 
and was cited with approval by Lord Selborne in the House 
of Lords in Hmldsworth v. City of Glasgow Bmk. Mackay 
V. Commercial Bank of New Brunswick is consistent with 
this principle. It is a definition strictly in accordance with 
the ruling of Martin, B., in Limpus v. London General 
Omnibus Co., 1 H. & C. 526, which was upheld in the Ex- 
chequer Chamber (see per Blackburn, J.)" 

Lord Justice Fry's judgment, although short was m.ost 
emphatic. He said it was plain that the action could not 
succeed on the ground of estoppel ; nor could it be supported 
on the ground of direct authority to make the false state- 
ment; neither could it be supported on the ground that the 
company was either benefitted by or accepted or adopted 
any contract induced or produced by the fraudulent mis- 

The question underwent further consideration in the 
House of Lords, in the eoso of Rvhen v. Great Finfinll 
Consolidated, A. D. 1906, L. R. 6 App. Cas., p. 439. This 
action was brought by appellants for damages against the 
company for refusing to register share certificates, purport- 


ing to be issued by the company, bearing the seal of the 
company s.gned by two directors and counter !„ed by 

affixed by the secretary, and without authority and th^ 
signature of two directors was forced by him Th! i 

lants had in good faith advanced .^ to h"' seJre aX" 
h.s 0.. purposes on the security of these share cerates 
Lord Davey is thus ;.ported at p. 445: "But even if I 
could make the implication that the appellants des^e I 
do not think It would assist them, for I agr w h 'the 
earned Judges in the Court of Appeal that every part of 

u£7rr'°^^^^n^^ ^^^"'-' '■' - hrwTll'kn wn 
udgment m B:intnck v. English Joint Stock Bank is of 

he essence of it. Willes, J/s words are these: "Tb^ln- 
eral rule is that the master is answerable for evenr S 
wrong of the servant or agent as is committed n the co^se 
of the service and for the master's benefit." Where there 

ore (a. in the present case), the secretary is acting fraudu- 

enty for his own illegal purposes, no representation by him 

relating to the matter will bind his employers. And S 

1 °P>°'«" i^t would be a matter of reproach if the law were 
otherwise. The reason for the qualification is that a repr 
sentation made under such circumstances, whether express 
or implied IS also part of the same fraud, 'and cannot righ 

L^f ^hrit? ""'''' '' ''' --^ - «^- - 0^ 

The appeal was dismissed with costs 

Five years later, in 1911, the question again underwent 
further consideration, in the Court of Appeal! in the case of 
Lloyd V. Grace, Smith & Co.. L. R. ^ £ b. p ^9 The 
rnanag^ng clerk of defendant, a solicitor, mis^appropriated 
the property of the plaintiff, consisting of real estate "nd a 
"mortgage fraudulently to his own benefit. 

Mr F%lm'^ ^^'' ?"' T' ^'''^^ ^^'''■- The defendant, 
Mr. F. Smith, carried on the business of a solicitor, under 

ie w h rl T^'''^ '^''^- P'«'"^'ff ^«°«"Jted Sand! 
les with reference to some investments she held with which 

i^^r!Tr^\ t""^ "P^" ^■■^ ^^-« she deposi d 
with him the title deeds of a freehold property and a cer- 

am mortage she held, and executed a conVnce of'them 

h.m for the purpose of making a sale and re-investine 

the proceeds. He deposited the title deeds of the "reetld 




[vol. 34 

property aa security for an advance to himself, which he 
retained for his own use and called in the mortgage debt 
and misappropriated the same. The defendant was un- 
aware of the whole transaction until after the clerk's fraud 
was discovered. The plaintiff believed she was the client of 
defendant throughout the whole transaction. The cause 
was tried before Sorutten, J., and verdict passed for 

On ajjpeal (sec Lloyd v. Grace, Smith & Co. (1911), 
2 K. B. D., p. IS!)) it was held by Farwell and Kennedy, 
L.J.T., that' 111 taking into his own name a conveyance of 
the jilaintiff's freehold property and a transfer of her mort- 
gage, the managing clerk was not acting within the scope 
of his authority as managing clerk of the defendant, and 
that the defendant was not liable for the loss through the 
fraudulent act of the managing clerk. Held by Williams, 
L.J., there was such a holding as estopped the defendant 
from denying authority of his clerk to deal with plaintiff's 

Farwell, L.J., in the course of his judgment is thus 
reported at p. 507: "It is, in my opinion, impossible for 
this or any other Court to overrule the statement of the 
law by Willes, J., in the Exchequer Chamber in Barwick v. 
English Joint Stock Bank, or qualify it by striking out the 
words " and for the master's benefit." as Scrutten, J., sug- 
gested. The law was stated in the same terms before that 
case by Holt, C.J., in Turhervilh v. Stampe, by Lord Abin- 
ger, C.B., in a judgment said to have been penned by Lord 
Wc'nsleydale in Iluzzetj v. Field, and by the Exchequer 
Chamber in Llmpus v. London General Omnibus Co., and 
has been restated and adopted in many cases since, e.g., in 
the Privy Council in Mackay v. Commercial Bank of New 
Brnnswick, in this Court in British Mutual Banking Co. 
V. Charnwood Forest Railuny, and by Lord Selborne in the 
House of Lords in Ilouldsicorth v. City of Glasgow Bank, 
and by Lord Davey in Ruben v. Great Fingall Consolidated, 
and must, in my opinion, be regarde-' "s an integral part 
of the law of agency. Lord Selborne . : "It is a prin- 
ciple not of the law of torts, or of fraud or deceit, but of 
the law of agency, equally applicable whether the agency is 
for a corporation (in a matter within the scope of the cor- 
porate powers) or for an individual." The qualification of 
the principal's liability is confined to cases where the agent 


.» «i a^ ir is rs-tr :;i: t: 

eipal or for the benefit of the Jnt See ZzL.] J^rF""" 
Smith & Co. (1912), A. C. p. 7^ ^ "''' 

Earl Loreburn, Lord Chancellor, in delivering his iudir 

nam 8 behalf. He was instructed by the Dlaintiff oa i\. 
representative of the defendant's fir^-LandT 2' tied 
liim tliroughoul— to realize her nroDerlv H, LiL j 

::Sesi;:;iv:r7i^ t ^^ordrhifas^etLts 

S Tut thru ^'?" *° ^'^" «^«y «" th«t she possessed 
and put the proceeds mto his own pocket. In mv onin- 
on, there is an end of the case. It was a breacrbyX 

S to aUf^'ir "" ""^"^^ ™«^^ ''^ ^-^ as defendant' 
agent to apply diligence and honesty in carrying through 

business wit in his delegaled powers and entn sted t. hfJi 

e ork rcJ.i V\'''' ^ ^^^^^"^ «^^ committed by 
ri.e clerk in conducting business which ht had a risht to 

Thu'plrpaf -^ ""' TT^' '," -d„et.VtL'l? 
authorit, of L„« V. -^^ ,«:i™yoVlJ It'", 

Shr' i" 'tt ""'-'r *»■" '» ^^ ^""-'i bvi^rd' 

(o .„. ■ !u " ''^'="' "mmits the fraud purportinc 

t" ac ,„ the course of business such as he was r°thopi»d 

n.l H^'th 7'^""* '" """•=<■* ™ -count " Up „; 
c,pa , then the latter ma, be held liable for if. And it the 

se tc'e" X' he°d '"""; •'- ^ '°°^'^ " i-'eaS of on 

^emence alone, he docs not say otherwise" 

Earl Halsfaury, in referring to the'wronff construction 
/'irr f'.Tl^^-"--^ ^or his benefit "-il^^v 
t^ngl^h Jo^ni mock Bank, thus comment.: « Sir John 




{• - 



[vol. 34 

Holt, tlie authority who for more than twenty years pre- 
gidt'd over the Court of King's Bench with the confidence 
of all parties at a somewhat stormy point of our history, 
and who has been described as a perfect master of the com- 
mon law, speaks in the case cited by Willes, J. {Hern v. 
Nichols) with ro uncertain voice upon the subject, con- 
firmed and adopted by such a Court as I have describe<l 
after more than two centuries. The case was this: An 
action on the case for deceit was brought by one Hern 
against a merchant named Nichols. The reporter seems to 
have had some diflBculty in making out what the particular 
kind of silk was, for he has left its description blank, but 
enough of the pleadings given to indicate very clearly what 
the complaint vas, and in effect, it was alleged that one 
kind of silk was represented to be sold as such, and another 
and an inferior si rt of silk was supplied. 

Upon trial, says the report, under plea of not guilty, 
it appeared there was no actual deceit by the defendant, but 
it was his factor beyond sea, and the doubt was whether thi.-- 
should charge the merchant; and Holt, C.J., was of opinion 
that the merchant was accountable for the deceit of his 
factor, though not cnminaliter yet civiliter, " for seeing 
somebody must be a loser by this deceit, it is more reason 
Uiat he that employs and puts a trust and confidence in the 
deceiver should be a loser than a stranger.'' 

The judgment of Lord Macnaghten is a remarkably able 
one and should be read with care. The learned Lord, after 
an exhaustive consideration and analysis of all the leading 
cases upon the subject, concludes as follows : " With the 
most piofound respect for Lord Bowen and Lord Davey, I 
cannot think that the opinions expressed by Ijord Bowen in 
British Mutrial Banking Co. v. Chamwood Forest Ry. Co.. 
and by Lord Davey in Ruben v. Great Fingdll Consolidated. 
in reference to the question under discussion, can be sup- 
ported either on principal or on authority. In neifher ca?e 
were the opinions so expressed necessary for the decision, 
and I dissent most respectfully from both. 

"The only difference in my opinion between the cOcO 
where the principal receives the benefit of the fraud, and 
the case where he does not, is that in the latter case the 
principal is liable for the wrong done to the person do 
frauded by his agent acting within the scope of his agency ; 
in the former case he is liable on that ground and also on 

"Sn ,„,. I V ''®,*'*°"ot approbate and reprobate 

Smith were not held liable for te fraud If 7 """^ '' ^'^'"■ 
present case. When Mrs TInvl I I V''' '*«^"* '" th^ 
the firm, how waTshe ^ kn^ ^ k* ^T'^^ '" ^'''^ ^""ds qf 
Sandles 'was? 2 s^ '""^ ^'^^V''' ""^^ P''"^^*'"" »' 
or firm which imp ioM a uZ 7 ^"''"'^^^ ""^^'- «» ^^^^'^ 
included in it meler CT ^T""' "^' '^^ ™«.^- ^e. 
were one of the fim TT f 'P'"''' ''"^ «^*-^ «« f ?'e 

room and tels herThattrT/ '" *'^'^^ ''^^^ ■" ^he 
hands. Natural^e ough he ,t "'^ '" "-^" 

before her, without trvW . ^^ .^ 'locumonts he puts 

^^0 is to'sutrerlr^7h7j „:;- r;?^ J'Jf ^^^^^ -- 

with his own au horih-l^^ If tj^ ^^^T'; ''"^ ^'^^^^^'^ h''" 
fact, Mr. Smith wontV i, , '' ''*"' '^^^^ « P'^'-tnor in 

Sandles as ll? ^aj jt fs" 7, v": 'k" ^''^ ^™"^ «' 
fraud of your partner R„f w •'' *." ^" '""'''^ ^''^ the 
Partnership Act^ It Ts l.f, 1 . [' *^/ '"^ ""^^^ the 
be held liable /or the fraud ofv'^^'P '"' '^ ^""'^•P^J ^o 
vant. You can hardly ai^r IT"* 7 '''"'^^"^•«' «"' 
hi-^ honesty; but there ar. Tl Kl '' ^''" " ^'"«"t^^ «' 
You can injure the hnes^ of th^"^ " '''"'" ^''""• 
confidential situation oTto^M'; m T" "'" ^'"^'"''^ ^" « 
agent obtain a fidelity poHcy ' ^'^ ^^^^dential 

of S, t Sklh^*'^ '""^^ ^"^^- «^ the Court 

transaction-as a thm<r Z^^^ \ ^"^ ^° ^^°^«ted 

trick was so cunningWon S"'' .' ^''''^' "'"^"^ ^'^^ 
tl'e fraud a mere mftt J "f ^'^ '''"* '° the victim of 

business aLut S 1 1^"''"";' *"^'"^ '""-^^"t in the 
-It I am of\^^r tf2.Tre'^:^^^^^ '^ ^ 

-able for the fraud of his agent." ' ""^'^'^^ 

This case settles once for nil fv,„+ • • , 

for the fraud of hii «lnf .1 ' * * P"ncipal is liable 
«r hi3 agent m the course of his employment 


- •( « 

I t -i 




[VOL. 34 

and acting within the scope of his authority, whether the 
fraud ia conunitted for the benefit of the principal or for 
n.e benefit of the agent. ii« 

A careful congidcration of the cases, on this subject, 
serves to slu'W the influence of tlie Judges in moulding our 
laws. Like freedom, Judge-made law has been gradually 
broadened dow:i from precedent to precedent. Nor will 
its influence cease until justice full and complete shall be 
the birthriglit of all, from tlie highest to the lowest. Codes 
will then come as fruition follows the gathering of the har- 
vest, or, changing the metaphor: codes will come, in the 
language of Lord Chancellor Haldane: "With the close 
of the day, after its heat and burden have been borne and 
when the journey is already near its end." 

The words, " and for his (the master's) beneflt," in 
Willes* judgment, delivered forty-six years ago, in flaririd- 
V. English Joint Stock Bank, proved a veritable stumbling,' 
block, and are responsible for the many conflicting judg- 
ments in cases of the like kind, so great was the respect paid 
by the Courts to a dictum of such a consummate master of 
the common law. 


1. Seeing somebody must be the loser by this deceit, it 
is more reason that he that employs and puts a trust and 
confidence in the dece'ver should be a loser, than a 
stranger."— Chief Justice Hv..t, A.D. 1700. 

8. " If this action does not lie against the principal, 
the consequence would appear to be as follows: The man 
who has reaped the benefit of a fraud committed on hi- 
behalf keeps the fruits in his pocket; the man defrauded 
in the contract ha.s to look to the intermediate person, ami 
not him with whom he contracted. If the agent is a man 
of no means this remedy would be fruitless. If the agent 
is able to pay, he does so without remedy over, and the 
person defrauded is reinstated out of the funds of one man, 
while the fruits of the fraud are retained by another."' 
—Wilde, B., A.D. 1861, in UdeU v. Atherton, 7 H. & 
N. p. 172. 

3. "The general rule is, that the master is answerable 
for every such wrong of the servant or agent as is committed 
in the course of the service and for the master's benrff, 
though no express command or privity of the master be 



provt.,|."_U'ilk.«. ./.^ ^^,j . 

c-ntile ^.l:Z^^'^^y r^^^ t,.a, i„ .„- 
to act wro,,.fu||y and "«" -" °""""''" "'^"'^ »«^»t« 

•;»'« «eope 0/ t,.^;:?,':rS^^ -rl/^^"''" »- 4ond 

«"ul(] havo the efrt.f.f J lul ^""^ '« "«"o»r a sense 

themnelves of ,.f /, ,1 \7^ ;''!^ P^'neipal. largely to ITa 
loH.^e.s or incurring a H h ' "*^'"*'''' "'^''""t -^ufforin^ 

construction has been LiIT *" «""'"'-ify- A wider 
f-n I.eld liable fo^fri X„ hV"''^- . ^'"'->"'^ '- 
tf'^J authorised the parti „ la '^ ""V""' '""^"^' "'^^ 
a general authority to .on^t /r«ud/""'s'"t ""' ''' ^^^'^ 
Sm th . n. 1874, L. I, 5 App. cv ,.74 ; 3 T"''^"' ^- 
•^^ i nere is so fnr a t • ^'"'*> p. 01*4. 

"■«h law. unless'it heXy/v "ir"'/ T P'^'^"'^"* '" K"?- 
wa.H overruled upon appeal f,! ' "f '•'^"'/-"". a ca«e that 
/ Jif 'e i" an actio;" ij:^ t'Tr ''"^ ^'''" P^'-'P«' 
fraudulent act of a servant ZL";, ""«':^''«''^-J «nd 
general or special benefit of tho n '■""''•"^'"•'. "ot for the 
vant's own priva,te end. The tn^T;'"''' '"' '^^ ^'"^ «- 
'ne, enunciated by the Pvcbl. r? ""'' "' '^ *='"^ms to 

Jo^nt Stock- Bank. ' Th j er^? I - ^'•'■'''''^' ^- ^«^/'*^'' 
^'"'^ ^^" "-'ter i. az.werS " '/ '''\ '^'"^^' •^•' '" 
.^ervant or agent as is commhted in 7 '" ' ""'""^ «^ ^" 
v'ce and for the master's benefit tbo 7'"'^' °' ^"^ ''^- 
"'«nd or privity of the master h "'^"^!' "« ^^Pre-^s com- 
A.n. 1887. L. R. ,8 I ^-j^-;^^ proved.' "-Bowen, L.J., 

ffround of direct authoritv <o u ^l ■^"PPorted on the 
neither could it be support on tl ' 'f'' ''^''^^-'' 

"Ppellants^Wo" tV ^""l''' "'f^ ""^ implication .- tbe 
^ a.ree with the \lt^t^^::Vu:7'' rT '''"'' '^^ 

n, ■ 

« H 


, J 



[VOL. 34 

every part of the legal proposition stated by Willes J., in 
his well-known judgment in Barwick v. Engl^h Joint Stock 
Bank, is of the essence of it. WiHes, J.'s, words are these: 
'The general rule is that the master is answerable for every 
such wrong of the servant or agent as is committed m the 
course of the service and for the mmters benefit. ^\here, 
therefore (as in the present case) the secretary is acting 
fraudulently for his own illegal purposes, no representation 
by him relating to the matter will bind his employers. And 
in my opinion it would be a matter of reproach if the law 
were otherwise."-Lord Davey, A.D., 1906 In Ruben v. 
Great Fingail Consolidated, L. R. 6 App. Cas. p. 439. 

8 " It is, in my opinion, impossible for this or any other 
Court to overrule the statement of the law by \Villes J. 
in the Exchequer Chamber in Barwick v. Enghsh Jovnl 
Stock Bank, or qualify it by striking out the words and 
for the master's benefit.' . . • These words must, >u 
my opinion, be regarded as an Integra part of the law of 
agenc?."-rarwell, L.J., A.D. 1911, in Lloyd v. Grace, 
Smith & Co., (1911) 2 K. B. p. 507. 

9 "The only difference, in my opinion, between the 
case where the prineipol receives the benefit of Jhe fraud 
and the case where ho does not, is that in t^ie latter ca.e 
the principal is liable for the wrong done to the person 
defrauded by his agent acting within the scope of In^ 
agency; in the former case he is liable on that ground an 
X on the ground that by taking the benefit he has adopted 
he act of his agent; he cannot approbate and reprobat. 
With all respect to the learned Judges of the Court 
'of Appeal, I think the decision appealed from is wrong^ 
l" think they are in error a. regards the law, and I th^nk 
they have not taken the correct view of the ^f cts^ -Lord 
Macnaghten, A.D. 1912, in Lhyd v. Orace, Srmth & Co. 

^^^Yo' "if th^e agent commits the fraud purporting to njt 
in the course of business such as he was authorized, or hoUl 

ut as Authorized to transact on account of his principn 1, 
then the latter may be held liable for it. And if the whole 

udglent of Wil J, J... be looked at, instead of one senteme 
'JonT he does not say otherwise."-Earl .1--^-"' : 
Chan;ellor, in delivering judgment, -Jf-^g ^h e deasu.n 
of the Court of Appeal, iv Lloyd v. Ora^e, Smith & to. 

(1912), A. C. at p. 724. 


ritAVD OF AGENT p-b . .t„ 




fl-ting decisions of':u;'ables jJ'^' ' ^^"^"^^' ^'^ con- 
eases on this important bran h of tS' '"■ '"'""' ^^^^ing 
^'ow mveterate becomes erro once 'Vr^' •" ''^'' '"^ '^^'^^ 
"■■'• ^^•', «.^ welJ, to accentuate r ^'^ '° "'^ legal sys- 
■oiut.on., ,.,;ss of jtdgtmt^^^^^^^^^ 
1-Jttainn,en. of perfection "" "^''"^«« ^o^^a^ds 

'•>• '^"ennLf/e'asoL-ng'^^^^^ ^ ^^^^'^'^Pn'^nt of law 

- i" the past it has^^nde such T K ^''^^ «"^ ^^«H 
^-es Coke, Holt and MansfieTdM " ff^ '' ^'^'^^ J"- 
progressive society. Such lISl ^''^ ^^' necessities of a 
continued to develop and eTnand /"'' ^° ^"'"^'^ 1^^- It 
third century, A.D.^ This 'C fotr°.';''^ ''''' ^^ the 
modification extending to he end oT ^' '^^ ^''^'^ «f 
The uncertain and ha uL ,1 '.J'^^" "^ J««tinian. 

tant principle of law has btn fi S' ""'^^ ^^"^^ ^° ^"^Por- 
ently satisfactory and'e'utSe'bS T', "^^^ ^ ^PP-- 
ment m favour of the view th«f ?>. ', """^^ ^ 't''^"? argu- 
-/ar as practicable to th for'' 'T ^''^"^^ 1"^ ^^ducfd, 
'•A code," says Sir James StlnT / ''"^"*^ «^ Code 
"Pon the principle that Tt aims 'at' nn.'"^'' *^ ''^ ^^-'^ 
re uction to a definite and TsLmli ,1"^ ''''' ^^^" the 
obtained and sanctioned by til ? '^" ^^ ^^' '"^^"Its 

turies." . "Ar, V*^, ^''P^'''e"ce of many cen 

a Bacon and se'ttled bv 1 C ke"?' "^'* *^ ^^ '^--" "y 

John P. Dillon U n i- 

author, of United Spates th^s trilfl'*'"^?''^ ' ^""^^e and 
the wisdom of undertak nl ? f^ ^n^Phasizes his yie^ of 
bo^y of our statutoi; ^nd eL il'^ Tf ! J^^tement of the 
' at nothing more than til l^^^J^^ ''"^« *!>«* a code 
^^•^^tematic shape of thrresuLlaT'^T'''". '' ' '^^^""e and 
«perience of many centunt ^ !? f^ ^"^*^«°^d b^ the 
odied in statutes, fn the la^ r' oi« *. '■'P'"^"'^^ '« «- 
the sages and masters of ^e law ',rt'° '^'' ""''''^"^ «* 
"•'thin these conservative 1 m^'t . *^'' P^'^tical sense, 

code in each of the uL d s'J/^'^ ^^ ^"^'-"d and a 
d^^tiny. I venture this predictln K "' ^ '^^°^' ™«°^fe«t 
remedy which it is poJhht' 'T'' ^*^^ ^« the only 
^o-n body of our law Iw i not7^''' *" "^'^^ *^^ -e- 

^" - -eloped !^-i::;^^,^.^ 




. 'bs 



[vol. 34 

am unable to perceive how we can permanently avoid it, 
whatever our timidity, and liowever reluctant we may be to 

enter upon it." 

Bacon, three centuries ago, thus expre^^sed his view upon 
the compiling and amendment of the laws of England: 
"The work, which I propound, tendeth to pruning and 
grafting the law, and not to ploughing up and planting it 
acrain- for ?uch a remove I should hold indeed for a peril- 
ous innovation. But in the way I now propound, the entire 
• body and substance of the law shall remain, only discharged 
of idle and unprofitable or hurtful matter; and illustrated 
by order and other helps, towards the better understanding 
of it, and judgment thereupon." 

The Imperial Parliament, after great care and much 
deliberation, finally entered tentatively upon the system of 
codification. . 

The Bills of Exchange Act, 1882, was the first instance 
of the codification by the Imperial Parliament of any por- 
tion of the common law. Its adoption has met with mark-.d 
success. Under the careful oversight of Lord Herschell, 
chairman of a select Committee of Parliament, to whom tlie 
Draft Code was referred, it did no more than codify the 
(-isting law, leaving all amendments to parliament. It 
was most carefully drawn and as carefully considered. The 
law was contained in 2,500 reported cases, all of which were 
critically examined, and in 17 statutory enactments. 

This was followed by the Partnership Act, 1890, drafxd 
by Sir Frederick Pollock. This has likewise met with rea- 
sonable approval. 

And, also, the Sale of Goods Act, 1893. 
From time to time Royal Commissioners were appointed 
to ascertain the desirability and practicability of reducing 
the criminal law of England, written and unwritten into 
one code. The report of the Commission on the Draft lode 
of Lord St. Leonards, Lord Cranworth and others met wiin 
such opposition on the part of the Judges, that it was final iv 
abandoned. Their objections, briefly summarized, were not 
directed so much against the principle of codification it?clf 
as from the fact it proposed the abrogation of the common 
law with respect to criminal offences, and all the rules and 
definitions of offences, and therefore likely to produce no 
benefit in the administration of criminal justice, but the 


St. John, N. B. 

Silas Alwarp. 



Some Constitltional Cases. 
^I'e Royal Commissions Case.^ 

'•'from the influence of oe,'- '""^''^ "^ ^'^^'^ ^"^^^^ 

possessions, in the cJe ^ he Cot 'M"""" "^ ^''''■^'^ ^'^'■ 
Attorney-General fori r "^'"''"^ ^"f^""- ^^''Mng Co. v 

attention to in cfnadf '""'"'"'"•««^'^'- It is worth calling 

A Boyal Commissioner has not hv ti . 
any right to compel witnesses f! • . '"'' ^^ ^"^land 
Royal Commissioner, wrhpolt In '"7 ^^^'*'"^«ny; and a 
(letails of a corpontio^'« ? ''"**''"'' exposure of the 

English ways oTt • '"nt ^"f/^^^^^^---- - repugnant to 
them" (the questions W' i« ''' '"'"P^"^^ ^^ ^n^^'or 

nberty-lintlveliftheirTlT '"^^--ferencc with 
the strong inclination of th",> C*^^'^" ■ ^'"'^- ^'--^«-' 
valid statutes or powers under ^'^'^'^^ " ^"' ''^^'^'•'^ i»- 
inquisition may take n ce 4, t", " '^ ''"'^-^'^^^ ^'^'''t the 
'•-■ommonwi'hSnaSnsand 1' "r" ''" °^'^" '^«"<1 
' ^epossession-ttTin caTr-' "*^^ P^^^P^^) have no 
-t by their gove^ment to h '". "'"f ^ ^''^ ^"^'"^-^ '^ 
uterest. And it is th^T ^'^/'^^'''aWe in the public 

tion (I am not elntintr;? I"' ^^^""^ «^ P-'^'^Posi- 
which accounts, I think fo? ?, J^J."" "''"^"''^^ ^-'^t'^^^e) 
tween the Aus ralinr, t / ^he ditference of opinion be- 

Pr;y Coun4tte^fruSr^:!eti:;r^.!;rf ^'^'^'^ "^ ^'^^ 
a decis on in Enffkn,1 ^. i ^^ "'"^'^ accounts for 

which in unantls Au t 2 "'" ''''' ■'*^*"*- 

question, and the conttTh,? r.^''''''" ^''' ""^ open to 

Australi; at aU eveS^T ""'1'*^ '^ ^^"^'^ ^^'^^ "«* (in 

The statute authc^L .r'* '^^ ^"'""'^^^ ^'^^acked. 

norinCouncil^tmrso ^s't^aT:"^ '' "^'^ ""-''- 
report upon any matter specTfied in t^ I h"^'"'^ '"*" ^"^ 
« relates to or is connected wL.h '' ^^*'"*' """^ 
good government of the Commonwllui P''''' "'•'^^'- ""'i 
pose or any power of th^CormlZlth."' ^"^ ^"^''^^ P"^' 


r ■ 





fvOL. b4 

Their Lordships hold that a general authority— such as 
this — cannot be given to the executive; that parliament 
must, itself, entrust he commissioner with power to enquire 
into some specific n:dtter; and that to an enquiry so auth- 
orized, only, can there be attached the power of compelling 
the attendance of witnesses and the making of answers to 
questions. Such a decision is so completely at varianco 
with all Canadian "prepossessions," that it is difficult to 
believe that their Lordships so intended. For myself, 1 
can make nothing else out of their language. Let us lool< 
at the case more closely. 

The customs-tariff of the Commonwealth affords some 
what effective protection to the sugar industry, and tlm 
excise laws provide for the payment of a bonus in respect of 
all sugar raided by white labour. The effect has been to de- 
velop the production of sugar to such an extent that it now 
almost completely supplies the local market, and the que? 
tion is. What is to be done next? Sugar raised by whito 
labour cannot be exported in competition, for example, witn 
Fijian sugar. And if it cannot be exported, are protection 
and bounty to be continued? These aids may have been 
advisable when the local supply was short; but what for 
the future? To obtain accurate information commissioner. 
were appointed to enquire into "The sugar industry in 
Australia, and more particularly in relation to — 

(a) Growers of sugar cane and beet. 

(b) Manufacturers of raw and refined sugar. 

(c) Workers employed. 

(d) Pnrchuiers and consumers of sugar. 

(e) Costa, profits, wages and prices. 

(f) The trade and commerce in sugar with other coun- 

(g) The operation of the existing laws of the Common- 
wealth affecting the sugar industry. 

(h) Any Commonwealth legislation relating to the suga.' 
industry which the commissioner thinks expedient." 

Of this commissioner, the Australian Chief Justice said. 
"It is plain that information on such mrtters might be very 
valuable for the purposes of the customs and excise laws. 
if not for other purposes of Commonwealth government. 

The commissioner required the plaintiff company to pro- 
duce its books and to answer questions "extending"' (as 
their Lordships say) " to the entire field of the company'? 




inP- Four Judges sat in th./? ^.^ '*'"'>' *'^*^ '''""^^e"- 
fone of them df ubted that U e f ?/ '''"^^ ""' ^^"P^'" 
but they differed-twoalatns l::^*"*? ^'"^ ^ '"''•« '■'■'•'■•^- 
commissioner to put some "hi '^"' '" ^''^ ""'^''^ "^ the 
that questions relatinrto the ' ^ '!*""'■ ^^'i' «" «?••«' d 
"matters within the area of f 7'?*'"" "^ "'« ^"'"P'^^y in 
petent; but they differed L to J""«diction were com- 
niatters that could be brouAt T^."''T ''^'''^' ^^'"ted to 
by an amendment oM^rSltuS ''' '''-'' ^^ -^>- 

■f they can be insisted onl aH J ^'^ "/ '''^^'^ 'l"^^*'^"^- 
course of a prolonged Inui^ fX"\ ""^ "^"^"^ «"* i" the 

-yfortheUant of h TegLaLrl \".' " ^^"° "^^- 
cise of its powers-" nSr. ^^'"^;"'^« 'n the possible exer- 

of the consLuttnali ;'ofThr: atte t'T^ ^^^ ^"^^^-" 
^ec. 51 of the constitution whil f^' ^'^^'^'^^S to 

Hament, legislative auSit^. t -pU^f 'f ^"' P^^" 
fied classes of subiects) their T i? ^^ "'"*''''" ^'P^ci- 
-ine in all quotati ns) • " N .e otti'' "' i ^''''^ "^ 
general control over the lihertv % i "" '"'"^"^ ^« that 
be shewn to be transfer ed'f[ if tb "'^'"^ "''^-^ "^-^ 
in the Commonwealth ft /= .f ' ^'^''"^"*^ «-^ nested 

section, the Commonwealth PaHi''"'':''"' '""''^ ""'^^^ *he 
certain forms of tradr ,Lt b '"?"* "''^ ''-"'^''^*« «''""t 
trading corporations SulLr.' '"u •'^'^^'■^*^^«' «"d 
the shape of statutes requir nf an^'"" '"''^' ^'"'''^'y ^ake 
of information about these s'vl ? '^""P^^^^^S the giving 
not what the Royal CommssTonrA/^''^^^^^^^ ^"^ this if 
scope is not restrictertranv ' , f'^'P'^^* ^' '^''- Th«'> 
ti--i or inquiry, and no Wi°,«t- l'"''' '''^^''^ "^ '^g'^'a- 
deali^g with Ipe^slS^Z iT^f"''!' ^'^^^ P^^^^ 
i^ordships have referred a! If ?"'" *" ^^■'"■'^'' their 
n> have been direS g mgttuon t^'^^' '^f'^'^*'''" 
quines which the Royal cZS '""'^ ''^ the in- 

Their Lordships then "rr'""f '"' °«" '"^^'^S" 
;bich gives JuriSion legl, r:^h "' V! '''■ ''' 
^ers incidental to the executZ 1/ '^'P^'* ^°' "Mat- 

constitution in the parlLment "' P""''. ^^^^^'^ ^^ ^his 
incnt of the Commonwealth •••.«'' ^ the govern- 

- officer of the Commonwealth;" ^V^tS 'Xldt 


• - '9H.^ 

' i^l^^^B " '^*Wm 

-^^S*- ^^ 

' JHKfiS 






[VOL. 34 

follows: " These words do not seem to tlieiii to do more than 
cover matters which are incidents in the exercise of some 
actually existing power conferred hy statute or hy the common 
law. The authority over the indivMual sou-jht to ho estab- 
lished by the RoyarCommissions Acts, the new offences which 
they create, and the drastic powers which they confer, can- 
not, in their Lordsliips' opinion, !)e said to be incidental 
to any power at present existing by statute or at common 

A Royal Commission has not, by the laws of Enjihind, 
any title to compel answers from witnesses, and such a title 
is 'therefore not incidental to tlie execution of its powers 
under the common law. And until the Commonwealth 
■ Parliament has entrusted a Royal Commission with the 
.statutory duty to inquire into a speciiic svhject, legislation 
as to which has been by the Federal Constitution of Aus- 
tralia assigned to the Commonwealth Parliament, that 1 ar- 
liament cannot confer such powers as the Acts in question 
contain on the footing that they are incidental to inquiries 
which it mav some dar direct. Having arrived at this con- 
clusion, their Lordships do not think that the Royal Com- 
missions Acts in the form in which they stand could, with- 
out an amendment of the Constitution, be brought within 
the powers of the Commonwealth Legislature. 

Their Lordships hesitate to differ from Judges with the 
special knowledge of the Australian Constitution which the 
learned Judges of the High Court, and not least the Chief 
Justice and Mr. Justice Barton, possess, but the question 
they have to decide depends simply on the interpretation 
of the language of an Act of Parliament, and in the present 
case they have formed a definite opinion as to the inter- 
pretation which must be placed on the words used. AVith- 
out redrafting the Royal Commissions Acts and alterin- 
them into a measure with a different purpose, it is, m their 
Lordships' opinion, impossible to use them as a justification 
for the steps which the Royal Commission on the sugar in- 
dustry contemplates in order to make its inquiry effective. 
They think that these Acts were vltra vires and void so lar 
as they purported to enable a Royal Comnii sion to compel 
answers generallv to questions, or to order the production 
of documents, or otherwise to enforce coniplianco by the 
members of the public with its requisition." 




'l-Btion; but it must ox^i e \,,r";"T" '' ''"'^ '" 
1-rovidmg for inquiry into ,at " T ^"^'•^' '^^'"«'«tion 
cannot authorizeVe'Oovlo r-Cenrj' n' S"V'/"' '' 
" ^"'"'"■^Bion to make similar inquiry """^ '" '^^"^^ 

"p^'SsSrs!^:;;, VE ^^n '"* ^- *^^ p— of 

once with liber ;C,ffiu" ^" '"""^'^ " intcrfer- 
.".possible toLive Thi " T'^''' '^ """''^ '- ^1-te 
Lordslaps. '^ ^^" conclusion reached by their 


Amid recent surprises with reference to fl„. n. 
some curious twists in n,,. ;-7 *- Presence of 

".ore disturhi„.h„ "he "r,f "*'?"' "'^'""^^ '^^^ '>e 

Canada a fede^a y te at II" o" "''' "" '"-^ "''^ - 
"'^•f "c have lord TT!Lr "''■ ^"^ eonscitution asserts 

-y that we hav^ n t DuT„rthe^ ' '"'"'^^ ''«'""""- 
tralian case, above reLred fl^ ! ^'^,T'"* "^ ^^^ Aus- 
cWerence to aTrea mat o 7 7'''^'"' ^^'^•- " ^^'^^^ 
f'-n just now S hoTleraT v f "• ''i' °" *''^ P'^*" 
no federal svsten, Wlnf ^^«^"^-'" Canada tliere is 

passed in 186; "hieh ^I'd aT ."? "'^^ ^'" ^^^ -«« 
P""-.s of government sot br '"^ '^"'^'^' ^"*«'° 

of Canada and some to 2 P ? ^"'" '" ''^^ Parliament 

The provinces were cre^l.^t" Til ""' ''' ^^^^'■"^^«- 
oome together and make a fed.ri P^^^'n^es did not 

they retained their TSinV. ^''^^^'^^^t under which 

of them, and riZS stlTT '"' ""''''' "'^^ ^-t^^n 
bargain; on tl,e coZn the whol "'! ??' '^ ^^"'^ '''' 
the Canadian ConstHutfon wl ']^''^^^' ""^ «"^bit of 

and then a 6^1^^'''' ""'' \'r''''''' '^ '''''''''' ^'^'^ 
tlie Canadian Constitution th., 1 '''^^^^"templated under 
and other states in te'd of Tt '^''' !^'^^^ be more states 

a -.le ParliaL^^t 1; rf .^rrs;",^t!r" 'T''' ''''' 
new states constituted nn^ 1 • 'P''"'"^ "P! there were 
ines and so on •' ' "'^ P''"'''"'" "'^^l^ f«r their bound- 

g ment at all. The meaning of federal 




at all. . . 1 *™ '•'''^. ^^fVordB because the word 

accepting such a surrender as t^^J^"'^^ ^^'^^ impossible to 
scribed, of all rights ^^^ P^^ ^anaL olonies out of 
„.ake the present ngh s o he Una^^ ^^^ ^ ^^^^^,.,.,„, 
their past rights, i here was a Lordships said: 

m their reasons for 3"^^-;;;' /^/g^^, «nL with 
"'''' ^'T tTafthftS pto in es haVexpressed then- 
the preamble tbat the thej ? p^^i^i^n with a con- 

desire to oe federally unit«a imo o ^. 

Btitution similar in principle to ^at f f e^ ^^^ 

dom. In a loose sense the word ^^f^^lj^\^^,, ^^,,, 
it is there used, to -^^^^^^^^^^ J^e Teir powers to a 
self-contained states «g;;^^;^.// f ^^J'eTy n^ew constitn- 

common ^o^'^^^^^ij^^^^^. But tie natural aiui 
t.ons even of the.tates the ^^^^^^ .^^ appUoati.-u 

literal interpretation of the wi ■ ^^ a measure 

- eases in ^^^i^^ -^ at^s wl^^ ^a^^^^^^ ^,^,^ 

of delegation, yet in the mai ^^^ ^^^^^-^^ constitutu,,), 
original constitutions . ■ ^^^^^^^^ -^ 

the true v-w aPPe^ t^^^^^^^^^ ^„, ,, „„,t be accept.l 
founded on the Quebec resoi , . ^ ,vlien 

as a treaty of n^non --^j^^^^^^^^ it counted a 

once enacted by the J'^P^^^^^^^ Dominion and Pvov- 

f,esh departure -/ J^^^.^^o.ers and duties both 

their legal source." assigned for tbe 

Before exananing ^ ^^ JJ ^^.titution, let us di. 
opinion tha we ha^ not a fe ^^^^ ^^^ ^,,.^ 

tinguish between (1) aj^"*"' , .„i<,tence It will be 
xne'hod by which iV%'r' dwell upon the method, and 
observed that their I-dshiP^^^^^^^^^^ ^^^^^^^^_,- 

appear to assume that if that metnoo character, 

th'e' antecedents of a state --*/ ^^Serence, that 
^per r : e^^ntX ::?inf that a constitution co.a 




ten States, by an nkmlbLT^? 7''" ''^' '^^"^P'« '' 
"HOther framed by reduction of „ ! ^ ^ '^'"® " 

is to »av fh.T fh. ■'"'.'»™ <ii"'Jed mlo t«<, stales (that 

word federal must be coSned «!„"«"" P"''; " "■'^ 
..ate,, whUe agreeingrat" J ,r42n*,:!','''r 
the Umted Slates consl.lution cannot now be federal 
P-oWn eTt Tn'raif":? '? "f '-"'^'''P' '' '"«' °" 

"■a) be said of a case in which there i. a surrender in one 

' *■ '/, 



[VOL. 34 

year and rcconstitution twenty years afterwards, one can- 
not l.elp Bavinn, in the Canadian case, the surren.lcr 
and re.onstitution (if that was really wluit happened) were 
not only simultareous hut that they both rested upon the 
one agreement. 

If the rule is perfectly absolute that the old powers 
must be retained, and *annot, even in point of draftin^j 
form appear to have been ejrhatified for new powers of 
precisely similar character, then, of course, our constitution 
io not federal. But 8ui)pose Ihat our draftsmen had pro- 
ceeded the other wav? If, observing that the constUutmg 
provinces had, at the moment, all .' jurisdiction the 
draftsmen had left in the provinces ilie precise authority 
which they have now. and had given all the rest to tlu" 
Dominion, then our constitution would have been federal. 
Prior to 1867, the provinces had jurisdiction over all sub- 
jects—from A to Z; the draftmen provided that A to M 
should be a.ngned to the Dominion, and N to Z to the pro^ 
vinces, and they made a non-feder«l constitution But if 
they had provided that A to M should be assigned to the 
Dominion, and that N to Z should be retained by the pro- 
vinces they would have followed " the true federal model 
adopted in the constitution of the United States." I con- 
fess inability to appreciate these distinctions. They do not 
shake my faith in the validity of Lord Watson's cla nt- 

ence- "The object of the Act was neither to wela i.. ,.ro- 
vince's into one, nor to subordinate provincial governments 
to a central authority, but to create a federal government 
in which they should all be represented, entrusted with tho 
exclusive administration of affairs in which they had a com- 
mon interest, each province retaining its independence aiul 


Lord Watson regarded the reality and not the form. 
To his mind, there was no surrender and repartition. The 
provinces retained-did not acquire— their independence 
and autonomy, and " a federal government " was formed. 


The peculiarity of the perplexities which sometimes c(m- 
found a colonial advocate when addressing the Judicial 
Commit, can be fully appreciated only by those who hare 

•Afaritime Bk. v. Receiver General, 1802. A. C. 444. 





-ee when tl.o judgmont is road / '"""'"^°« ""*> '"av 
which, with us am I ? . / '1"''^"""' ^'"'' *''«t views 

British fi2n"^t;'t; /^"^^^^ T«'-^^ -^■' 

little chance The fnlll. ' J'""' "^vocate has 

' ' uiiu lor til s reanon If tUia : • >. , 

Ihal .e.»e il „,„, t„ „„„ ,,,7 ' ° oon,t,tul,„„ i„ 

^"ch a law Tftt Vol':'/ r.: t r ^"^^-^^ '^ ^^'^ 

.■•xistence-that it was Xl W^^'"' ''" '^^^' "'^'^ ""^ '" 

powers the ae? is Ic ^ ituiontl IrihTi '"'^'""'1 ^'T 
federal constitution it has been t l.e^d '''''' ""'''' "'^ 

2S wXil'i'.S^: "^ '''"""■'"' /"^ '^'''«- ^o"'* TF«ic« V. Bonier, 






[vol. 34 

Th.- Karl of Halshury:— Do you mean if some privilege 
were given under this act and there was an act passed by 
the legislature of one of these states and that act lu'come an 
act of parliament hy His Majesty's as.ent that that couM 
be disregarded by any court? 

Mr Foley -—Possibly not after a period of two years lia.l 
elan^'od; but during the period of two years it might be 
called in question as an uncon=*titutional exerc.><e of \ho 

power. , ^ 

The Earl of Halsbury:— 1 do not know what an uncon- 
stitutional Act means.'' 

In tlius saying, I.ord Halsbury was but repealing the 
view which, through him, the Judicial C"nim.ttee as a 
whole had expres-'ed in a previous case." " But here tho 
analogy fails in the very matter which is under debate. .%•' 
State of the Australian Commonwealth has the power ot 
independent legislation possessed by the States of tli- 
American Union. Every act of the Victorian CouBcil an.l 
Assembly requires the assent of the Crown, but when it .- 
assented to, it becomes an act of parliament as much as any 
Imperial act, though the elements by which it is authoriz-i 
are different. If, indeed, it were repugnant to the pr<.- 
visions of any act of parliament extending to the colony, it 
might be inoperative to the extent of its repugnancy (see 
the Colonial Laws Validity Act, 1865), but, with this excop- 
tion, no authority exists by which its validity can be quc-- 
tioned or impeached. The American Union, on the otl.'. 
hand, has erected a tribunal which possesses ]uribdict:o„ lo 
annul a statute upon the ground that it is unconstitution;.!. 
But in the British constitution, though sometimes the phra-o 
« unconstitutional " is used to describe a statute which 
though within the legal power of the legislature to enac . 
contrary to the tone and spirit of our mstitutions, and to 
condemn the statesmanship which has advised the ena t- 
ment of such a law, still, notwithstanding ^^^^ condenu a- 
tion, the statute in question is the law and must be obejed. 
There is, in the United Kingdom, no such thing as an 
unconstitutional act of parliament. And that, therefore.s 
one of the many-very many, prepossessions ''h'^J/^''. 
Canadian advocate has to try to eradicate m ^^J^^^'^ 
which should commence with common «° o 
fundamentals. I think-I am almost sure-that I lo,t «..e 

• Welh T. Outrim, 1907, A. C. 88. 






'■"mmon knowledge that th^ /r„ , '" " '"atl<'r of 

.li.«t/o„ wore faSiartJrt "?;?": ' •"'",™""' ■»'■ 

•nd their .«ppo^?We '„ IT /k""'°'' "'° "™tfl„tio„ 
tlio const tution of +}i« p«^ , , ^" lashioning 

i-cipie estab,ih:Vb;tSTnrrstate:' ^^r^^' *^^ 

preference to that chosen by Canada Tt """" ^"^"K"'^ ^" 
historical knowledge that in Ansfrol Vu ' ^ ™*^^" °^ 
in/r the future constitutLnln u*^' """"^ °^ ^«^l^'o^- 

preparation through th^^Zr' T^''^ '''''^'''^ ^''^^ ^^ 
ferences in which the%Z/? . ^«"^^°ti«n« and con- 
Australiatoo^part" distinguished statesmen of 


Judicial Committee! submitting our cases to the 

l$ss\y^, sftvr-aoi" »= "■ ^ ■'■ ^- •». 

Tre66 V. Ou/nm, 1906, A c!«). 




[vol. 31 




To THE President and Members of the Ontario Bar 
Association : 

The report of your Legislation Committee for the past 
year has been rendered more than usually onerous by reason 
of the extraordinary large volume of legislation passed hy 
the Provincial House during the session 3-4 George Y. 

The 1913 Ontario Statute, as you are aware, is a formid- 
able volume comprising some 152 Acts, 88 of which are 
Public Statutes, and many of them revisions of former 
Acts intended to take their place in the new Revised 

Following tmditional methods, we propose adverting 
briefly to certain features of the legislation for the past year, 
and to add a number of suggestions as to changes or amend- 
ments in existing legislation considered advisable. 

First then, referring to the Ontario Statute for 1913, 
the profession will be delighted to learn that ' the consum- 
mation devoutly to be prayed for '-the final and complete 
revision of the .Public Sitatuttes of Ontario— is speedily 
approaching completion. 

Chapter 2 is an Act respecting the revision and con- 
solidation of the Statutes of Ontario. 

The preamble contains a useful, historical and clirdiio- 
logical record of the appointment, constitution and work 
of the Roj-al Commission appointed for the purpose of revis- 
ing and consolidating the statutes. It recites the progress 
of the work and the revision, of portions already completed 
and enacted into law in the various annual statutes, and 
that it is in the public interest that the revision be con^ 
pleted as soon as practicable and before another session of 
the Legislature, a sentiment to which the profession at 
large will heartily subscribe. 

Section 1 provides that so soon as the revision is cnm- 
pleted a printed roll thereof, attested by the signatures 
of the Lieutenant-Governor and the Provincial A^nvtary. 
shall be deposited in the office of the Clerk of the Asseniby. 
and section 4 provides for the same coming into force under 

19H] H^X tE0XS..Xr0X COHHZXTBE, 0. B. .. 233 

the name of Revised Statutes of Onfo • ,. 

form mode of express o";to^;akfmt^^ '" ^T'^' ^ ^°^- 
elearly to declare the intentionf .r' T' T°^°^^°*« °^°^« 
"le seemingly inconsistSS "a^Lt ts .^^^^^^ ^«-- 

or typographical errore; to imml?^^^' "^""^^ ^'«"««J 
statutes, and to eliminate th? oh, ' ^'^^Sement of the 
less, and submit suT changes t'Vru"'''^^^^ ""^ "«e- 
able in the public interest ""'^^^ ^' ^''"^'^ «dvis- 

to o%at"rn!w'L^tt^l'*«*"*-/^-» not be held 
pealed and supplanted Vereby " ''""''''^''''^ «f Acts re- 

t"e BeSd' sEf ^'^^ ''' ^^' «^" »- -printed with 

^tatu'tri.t^lX L^pS' :r th^'^^ ^^^^^'-^ «^ «'« 
«"der way, and that thTSev H Zf ' T'^ '^^ P""*'°g 
their appearance some time during H '''' ^'" "'^^^ 

That Omnibus measo^e thelf ?! °'/^ "'°'^*^- 
Act, ch. 18. contains the usual ^^ ^"' Amendment 
ame^Jment« to numerous Acts ^ '"iscellaneous 

the'old^High" OouTt :;Vttbst> k'^ f ^PP— «' 
-here they occur in anyAct of 1. t^ ^'' *^^^ ^^^^s 
'^ords: "The High CourTnfv • >. ^legislature, of the 
Ontario," this bfing «„ ameTdm 1 f' ?"^^^™^ ^-^^ « 
Acf, 7 Edw. VII. ch. 2 '"'"^™^"* *« the Interpretation 

A furtther amendment tn fh,-= a x 
Justice of the Peace havino- n fJ -f '* P'^'''^^^ that every 
ho same powersTo t J' Ind r..""'" t ?'''"'' ^^^'^ ^av^ 
ion^ as commissione s apnofnt d '7^±''*^ ^'^^ ^^r-- 
«r Taking Affidavits ^'t^^ '^ """^^ The Commissioners 

'^^^^^^^^^^^^ to the 

'd the amendment ^rovSth„r;''-''P^^^^ 
^en either in the appearand or L T ?f'' "^^^ ^« 
«'-e. Corresponding chanlar. „! J^^'"^^"^ «^ ^e- 

^e effect to this amendme:^. '" "'''*^' '" *^« Act to 

VOL. XXXIV. C.L.T.— 16 






[vol. 34 

The Arbitration Act, 9 Edw. VII. ch. 35, is amended by 
adding a sub-section to sec. 33 thereof, that when an award 
is set aside, the Court, or a Judge setting same Mide, may 
direct as to costs of the reference and the award. 

An amendment also appears to the Execution Act, 
Edw VII ch. 47, by enabling the sheriff in executing a 
fi fa lands to sell lands of an execution debtor, including 
any lands held in trust for him by some other person. 

Provifiion is also made under the Administration of 
Justice Expenses Act, in criminal matters for engaging and 
paying for special services of medical practitioners, land 
Burveyors or any other pei.^on, subject to the approval o 
the Attorney-General; also for procuring the attendance of 
witnesses residing outside the province and recouping them 
for loss of time and expenses in attending trial. 

Sections 24 and 30 of the Statute Law Amendment Act 
afford evidence of the discretionary powejrs and advan- 
tageous exercise of same by the Eoyal Commission in tlie 
revision of the statutes, in transferring these sections from 
the Judicature Act to the respective Acts to which they 

properly belong. 

One is the section enabling a mortgagor, not in defnul , 
etc to sue or distrain in his own name; the other deals 
with the condition of relief from forfeiture in the case 
of a breach of a covenant in a lease to insure. 

These sections now take their place, the one in the Mort- 
gages Act and the other in the Landlord and Tenant Act 
and are omitted from the new Judicature Act appearing m 
the present volume. 

The sections amending the Public Libranes Act illus- 
trate the danger and inexpediency of hasty and ill-con- 
sidered legislation. 

These amendments were intended to radically change 
the constitution of public library boards, but ^ere ortun- 
ately discovered before being enacted and through the Mgil 
ance and exertions of the Ontario Library Association an 
of the Toronto Public Library Board m particular, a section 
was added providing that they should not come into force 
until a date fixed by proclamation. 

The Ontario Companies Act as revised and re-ennctea, 
2 Geo. V. ch. 31, is made the subject for three more page> 
of amendments. 

1914] HKPOBX tEOISI^xiOX COMHITTBK, 0. B. .. 235 

in m^ tJ^^ti^^ ^^ in m2 and .-revised 
the attention of the U^s^^^^^ P"^^'* ««* to require 

Private conipanies ali nl "T ^""' *" ^^'n^- 
"Private Company" unon Z ""'^T^ *" ^^^« ^^e worda 

Special pro?i.L Tmade L ^^f «hare-certifieates. 

dividends b/mining and^LdrPd ^^'*' *^' P^^^^"* «f 
assets. ^ "'^ ^'""^'^^ companies out of wasting 

app^r: i:tli\i^ itr "r ^ «"^ — ^^d and 

engrafted on the former aT '^'°^'^ ^"^ amendments 

trar, Deputy Clerk o1' the Vrl'' f'* '""^ ^^«I Regis- 
t- and Clerk of the C ^nrCo^rf "l^T "^^^"^ «^^«- 
special examiner for thec^Urf . f ' ''^-°^'^"«' be a 

An aniendment to the OnLi^'i:'"' '^ f ^PP«^°*«<^- 
quires companies registered nlT ITT'^ ^°* ^^^^ re- 
trial companies, to s'nd foti's to T. •'''*' T^P* ^°'^-- 
nionth of the date of the W„n /"'"'"'^ ^"^'^ «"« 

insured to produce evidendof a.? ''"f'l ^^^"^"'^^ *^« 
be sent out annually thereafter ^^l^^ ""^'^ "'^"^^^ °^"«t 
-ise the companies JnT^jT'! T '' ^'''"^' ^t^"" 
The revision of the Ont r^ P , " f"^'^'"^ «'^'"«- 

this volume, extendinrove?;ome 800 T ^'' "PP"*" ^° 
-nents and new provisions too? '''*'°°'' ^^*h "'"end- 

^ail within the fcopn^hirre^r "" ^^ ''''' '^ - ^- 

- t'r;:/::::^^^^^^^^^ «-^ ^ct has a^o 

he inost notable o7:i^XveTio\:T' '' «^^°^-' 
"1 on the Lieutenant flovrH • ^^ *^® P"^*"* "on^er- 
7 to vaiy or rescind the ^r^ ^° ^'""^" ""^«^ ««<^tion 
^i« feature beW adored fr " T''^^^'^^ «^ ^'^^ board, 
^t^Jhis a.e.d4nf ri^^oL^^^^^^ ««^-^ 

00k rhiryea\loT?h^fi:!:"r ^^^r ^P«° *^« S^«^«te 
ydro-Electric RaL^ if ir T^" '^^ *^"« «^ the 
- the Hydro-EIecTJfc P^wer crmm- ^'"^ !^ '"^"'"^^'^ 
"nieipal Corporations with 1 T''°^ °^ ^"**"^ """^ 
'vemor in cVunc 1 to^^ter^'r ''° "* *^^ Lieutenant- 
uncij, to enter into agreements for the con- 



H 1 

f ' • fS 





[vol. 3i 

struction, equipment and operation of electric railways to 
be operated by electrical power or energy supplied by the 

The Act provides that where the construction and opera- 
tion are to be undertaken by municipal corporations, the 
management must be vested in a public utilities commis- 
sion approved by the Lieutenant-Governor in Council an', 
subject to the powers conferred by the Public Utilities Act. 

The Public Utilities Act also appearing this year for 
the first, is practically a consolidation of various old statutes 
relating to public Utilities redrafted and re-arranged and 
with certain new features added. 

One part provides that the council of a municipal cor- 
poration owning or operating a street or other railway or 
telephone system, may pass a by-law, with the assent of the 
electors, to provide for the entrusting of the construction 
of the work and management of same to a commission 
known as the Public Service Commission of the muniei- 
pality interested, or, an existing Public Utilities Commissinn 
established under this Act. 

The limitation of actions is six months from the com- 
mission of the act complained of, or in case of a contin- 
uation of damages, one year from the original cause of 
action. This provision is adopted from the Municipal 
Water Works Act R. S. 0. 1897, and now applies to all 
public utilities uuder the Act. 

Underground conduits for conveying any public utility 
along highways, etc., are required, except under certain 
conditions, to be laid not less than six feet from existing 
conduits of any other person, and notice of claim for dam- 
ages for default in so doing must be given within one month 
after expiration of any calendar year in which the damages 
were occasioned. 

Another important Act which has received the atten- 
tion of the revising commissioners and legislature during 
the year is the Municipal Act. As now consolidated, it 
covers some 250 pages on the Statute Book, and has ap- 
parently received very careful revision, and numerous re- 
drafted, amended, and new sections are now in evidence. 

Hereafter any person at the time of a municipal election, 
IiaJ>le to the corporation for arrears of taxes, will be in- 
eligible to be elected to the council. 

;n. .ood faith, 1,: not beVX r\:"' ''' ^'' ^"^ 
being unreasonable. ^ ''^ °° *^e ground of its 

Under section 259 a certificate of fh« 1 , 
commissioner as to the prosorTb.d !, l '^^ " "'^^^«°^^nt 

'"? 8'gned an application for the i"'^ '^ '^''^''' hav- 
'■"J;r any Act, there is such remr°^ "/ ^ '^^^•-^^^' ^here, 
be final and conclusive as to thl T^ T'"*' '^^"' ^^^^^ft^r 
The powers of n n V '*^'' ''"^^^ed to. 

fopriati^, :;:tL:c:c;^;/r d^- -'-'-' ^^ - 

accidents occasioned b^wantZ^"'"^ ^'^ ^«™«g^« from 
*hat all actions for such dal7'" I' '™^*^^^ by ^q^i^ng 
nonfeasance or misfea nee ^^^7^ '"J'^^"'*'^^ ^-^ 
-nths from the time sustli^d ' '''"^''* "^^^'^^ three 

-^^^^:Si:^:^--a^-ain the same 

P^e^rt^^S^V^aS:; tf tr^^ " --^ition 
^"ffored damages beyond Xt he h ' '^'r'°* ^^^" ^^^e 
"■"- all others affected by The Ll / '"^''^^ '" ^^'"'"on 

The necessity of cities and 7 '"P"'"- 
-/r improved housing accommodir' -'^"^'""^ ''^ P^^^^d- 
nevv- enactment to encou a™ >^ '' recognised by the 

cities and towns '"'""'^'"^ housing accommodation in 

^aranteeing their securit sTp to /.""""'"P^' ^^^P^^^tions 
> tl'e lands and improvements ! K F'' "'"* "^ the value 

-tors, but With po^rr ;, :^^t : ^'^ "^^°* ^' '^^ 

^ tl.e project is approved by the Prnl X'""'' ^''"' ^'•^•"" 

The council has also Tp tntaH^rf ?"^ ">' ^-'th. 

nd control of the enterprise ' management 


^^ "f «'e Associatior ^ '^ '"^^^^''^t to the mem- 

!• The Bank Act ch 9 Th" a 

irt • 'Si 




[VOL. 34 

of the former Act, with numerous changes and additions 
int nded for the greater protection of the public, as well 
as shareholders. A compulsory shareholders' and pennis- 
fiive government audit are among the special features of the 
Act, which must be carefully perused and studied throughout 
by each member for himself, as the changes are too 
numerous to comment on in detail. 

2 The Criminal CoAo. Amendment Act, 1913, ch. 13. 
ThisAct amends the Criminal Code R. S. C. 1906, in a large 
number of important particulars such as the restriction of 
the sale and use of certain dangerous weapons without a 
permit, the offence of procuring for immoral purposes, the 
keeping of gaming or disorderly houses, neglect to provide 
for wife or children, the making of false statements in 
writing with intent to obtain advances, etc. 

3. An Amendment to the Exchequer Court Act, ch. 17. 
This Act makes provision for an Appeal to the Exchequer 
Court by an applicant for a patent from an adverse deci- 
sion of the Commissioner of Patents at any time witlnn 
six months after notice mailed to him by registered letter 
and give this Court exclusive jurisdiction to hear and 
determine any such appeal. 

4 The Gold and Silver Marking Act, 1913, ch. 19. 
This is an important Act intended to protect the public from 
fraud in the manufacture or sale within Canada of articles 
made from gold or silver .r plated with either of these 

precious metals. 

5 An Act to amend the Government Eailways femall 
Claims Act, ch. 20. Provides for claims against his 
Majesty not exceeding $500 arising out of the operation of 
the Intercolonial Railway being sued in a Provincial Court, 
having jurisdiction to this amount over like claims be- 
tween subjects. ., 

6. An Act relating to Parcel Post, ch. 35. Provides 
for the establishment and maintenance in Canada of a 
Parcel Post System for conveyance of parcels of all kinds 
including farm and factory produce, subject to sucii ex- 
ceptions and regulations as may be made by the Post-Master 
General. The Act is to come into force on a date to be 

proclaimed. , • » i 

7. An Act to amend the Prisons and Reformatories Act, 
ch. 39. Provides in the main for special power of sentenc- 
ing certain persons convicted of crimes to imprisonment for 
indeterminate periods. 


8. An Act to amend to Judge's Act ch 2« a 
other provisions tho Ar-f fiv„„ *u °, *-'' ^"- -«»• Among 

- Ontario at $3 500 for tt t , /'{ '^ ^'*'""*^ '^"^««- 
i'ork, and at «3 nno ^^' ''^ ^^'^ ^*«"°ty <^'ourt of 

^udg; s :f i IrLraT '" *^! '''" ^-"^^ Cou^t 
taining 75 years of L lu '=«'"P»l^«"ly retired on at- 

s /o years of age, or they may resiim nff«r ^n 
of service on the Bench in oifh./ ^ 7 ^ y**" 
full salaries for life. ^'^'^ retaining their 

inceVontalTio' Th" '?r^ "^"^^^ ^^ ^^« ^-v- 
words, "a D^vVonal ConTf A'i '^'^^'^ ^"^^*^*"t«« the 
the Supreme Curt of Ontali^^^^^ f.^^^'^^I ^^^'^^'^ «f 
Appeal for Ontario/'ldte wor ^!HVh'^^^^^ I ??-"^*. ''^ 
of the Supreme Court of Ontlrio " f.r\t 'I ^''^'^'^° 
Court of Justice for Ontario" wL r ' '^'''^'' '"^'^^ 
^"ereto in Acts of the' P^^UtTf c'lZT ''' "^'^ 

Defines the ttXTfll^- '7""^ ^^"^* ^^t' '^h. ^1. 

Court in adS;°'circrn ^n^or ^r^ ^^^ 
assessors sneciallv miaMn^A j . ° °°® or more 

It fixes three sessions of thp rr^^^^^ „ 
ing the first Tuesdav i,, irl * •^'^"' commenc- 

and second Tue Zin ot^T"^' T""^ '^"^^'^^^ ^° May. 
Governor-inlune'^or th turt"'^"* M-^'^"^^ ''^ *^' 
t^.«.^.a..«.offour Jel>t[LTheL"o^ '^ ''' 

tionX^'Si'^atTt^^^ -'^«-^' -n- 

ar,d the West Ind^'an T „, a'^'"''' '^'•^''^^ ^''' '^- 27. 
former, witr cerZ relrvatiotr^'fi * ""''' '^'- ''' *^« 
Commerce and Navir+ on '/'f ™^°^ " 'T'-^^ty of 

and the Empire of Janan"/^. 1!'"°^' "^ *^^ «"^ P"*, 

and whi.h SI tt: ully Ltd'trl'o" ^'f- ''!'' 
"?hts, privileffes and 1{ JLJ V , ' *^ ascertain the 

this oouLi; Twell a BritT."' v^fP"'^ ^^^^'^^^^ ^° 
of Japan. The litter Lf fl '"^^''*' '" ^''^ ^"Pi''^ 
April 1912 w !!; Act confirming an agreement of 9th 

'nV V the V-tTdTaTrr^^ ^^"^'* ''^ *^^ «- P-t, 
ist of articles. ^ extending over a numeroas 


Pi ' ' 

>J H 


H^^ i> 



[vol. 34 


Your committee recognize that the work of revising and 
consolidating the Statutes has been one of undoubtedly 
great magnitude and prosecuted with consummate skill. 
ability and thoroughness becoming the eminent jusiets who 
undertook the work. 

The protracted, though unexpected, delay in completing 
it has been obviously a source of considerable inconvenicneo 
to the profession, • nd now that the work has been completcl 
it is to be hoped that any proposed changes or amendments 
in the existing Statutes should receive due and careful con- 
sideration, and should be either drafted or at least reviscl 
by counsel kno- n to have special qualifications m the par- 
ticular branch of law required. 

This suggestion applies not only to the existing statutes, 
but with even greater force to the drafting and devising of 
new Acts. ^ 

By adopting this method our legislation would be scion- 
tificallv and skilfully prepared, there would be less un- 
certainty and conflict (.f authorities as to the interpretation 
of statute law, the work of the decennial revision greatly 
facilitated and the delay incident to the last revision there- 
by avoided. 

Eeferring to particular statutes, your committee wouUl 
make the following suggestions for consideration:— 

(1). Under the Division Courts Act: In case a summons 
is not served by the bailiff within ten days and good reason 
not shewn for such default, the suitor should be at liberty 
to take out the summons and have the same served himself, 
in which ca.=e the bailiff should not be entitled to fees for 
services. This should apply as well after as before judg- 

(2) That under the same Act, some less expensive and 
more expeditious procedure should be adopted to enforce 
payment of small claims, say under $25. 

(3) That any claims under this Act, exceeding ii*50, 
where particulars equivalent to a specially endorsed ^vrlt 
in the Supreme Court of Ontario are given and the delend- 
ant disputes the claim, the Judge should be given the dis- 
cretion of allowing a counsel fee of $5 to the succe^stul 
party where he appears by solicitor. 


Court of Ontario in Chamho ^ '^°'^^'' "^ *''« Supreme 
and the right of aDneairnM\'''^ '^"^ ^"^ ^''« trial Judge. 
$50. The^proce;;rn,^ht ^ ^'r*'!^ '" ^" ^'"'-^ -'er 
poIlantrequh-edTodeno fl n'"''^' ''''^^' ""'^ the ap- 
/-^^ TT ^ :, ^ " """" '""» «s s'-cuHty for costs 
(5) Under the Surrogate Courts Aoi t ^"^'''*'- 
lioug matters a solicitor in Lni! , ^" """-<^"nten- 

authorized to take anv ««.?'* '^ ' ""^*t" «''«"W be 
would be a gU" cont" ie^fe'^t^Sr:^ ^'^ ''^- 
practising in sn.all places throX f v, ™""^ '"'"''t'^^-^ 
the same time would bo in i.^ *^ province, and at 

other non-contentiot business"™""' "*'' "" P^-*"- '" 

power to give a fiat for n , i'^'"' °°^ discretionary 

It is recommended that he ^''"^ '"' ""* ^"^'^'^^^'"^ $'5. 
''e .^ivon to the JndJe in SurrT f ^;;'^t.onary power should 

volved complicated '' ^^'^" ""^^ the issues in- 

on Sn:;i^::ajs;i;tnxsr"r^^^ ^^---^ 

hnhtr alloniioa ot vi„ "'""""''on lias roceive.1 tin, 
mond that, Xr^.tZLZ"' "'"' ^'™* "™'"- 
Md^ and salaries mfd. I, ' ?™"«™int should be 
ihem to devote heir enli^ r'". °?1°™ «' »™M ^--We 
relieve them from the .etl'™,'" """ °®'='" ''"■«<^' »■»' 

..attera where the publie'isTeer^ed " °' """'■"' 

consTZt^X'^fSr'n *,""'." ■' ™'"'" «'ta»" -r 
l>™<lonee th t the TjZ^^'Z'T'r "' ''°»""'" """ 
"■ <l.e when, .nomaloltd d„.t;:"tiS "', ?'T °'"°™ 

;^i.ritfL'';ieXt"i„"''?^^""' ---?"» 

in large cities, this anomaly should be at once 


? ' 

i u ■ 



[VOL. 34 

i- A »r.A thfi salaries of such officers if necessary 
a Bcontinued and the salaries "^ »"*- , „„.„,,,„.( 

increased to properly compensate them for the service 

""irstaller places where the Crown work is not sufticienc 

II; ;iIa'JftT."e'c,,,v,n. and in that way the same re»ul, 

""ThUbr'tident to oxiatins ce„diti<,nB ha.e been frc- 

ine anuses luv-m pmirts as for instance in the 

quently commented on - /^^C^^^^^L ....ent number 

Tth r:./ ^oLVandt tfie ease of .e Ho.^n ^^^ 
4 W. N. 434, and Livingston v. Lmngston, 13 0. L. K. 

'°\our committee would further recommend that the r. 
quirement for registration of f'tnership agreement, (n 
L months) should be limited to nay th. ty da^B- T 

Court on jrr<^cipe direct to the Par"es ^ ^ ^ ^,,, 

the present anomalous practice of being obtainea y 
Judge or referee trying the case. 


In view of the present substantial increase in the jun-- 
diction of County Sourts and the f -t" ^a^ur^^^^^^^^^ 

Inch Judges, your coUittee would recommend that thnr 


Mlaries Bhould be materially increased and the occupants 

indenerl' ^''"^»?'=^ '"^'^^^y PJa-d in c.rcumstances 
of independence and ,n keeping with their dignified position 

8 denng he increased cost of living, receive due consider- 
ation on the part of the Government. 


Your committee would further recommend that a bank- 

n:p cy law should be enacted by the Dominion Parliament 

applicable to he whole of Canada. The need for euoh 

egislation has long been sorely felt, and the rapid increase 

n the facilities of communication and transportation in 

this country and the phenomenal growth of inter-provincial 

trade which has taken place during the past few years, 

render uniform laws and procedure in insolvent matters 

the more imperative, and it is to be hoped that this matter 

consideratSn "^°" ^^^ attention of Parliament for early 


nf>,'^^\^!'*'*i'^*^''P*^^ ^y '^"^^^^ manufacturers and 
other wholesale dealers in fixing uniform prices of their 
wares to be charged by retailers, and refusing to deal with 
hose who will not agree to conform to their schedules, 
hould be prohibited. This practice is especially prevalent 
in the case of manufacturers of some well established 
specialty or of some patented article. In the case of 
some patented articles particularly, where valuable privi- 
leges are granted to patentees under the authority of a 
statute it 18 only reasonable and proper that these privi- 
leges should not be abused. In all such cases the public 
should be protected. ^ 

All of which is respectfully submitted 

Signed on behalf of the Committee. 

December 29th, 1913. 

"K B. Gash," 

-• 'l 

■s ■ 


■' ;Ji 


^^t ,r.M 



1 , a ^^M 


I f 

' '^1 


I'" ^1 


^ ^1 

1 ' ^ 






' ^1 


M t 



[vol.. 34 


The annual meeting of the Manitoba Bar Association 
.sJmA at the Fort (rarry Hotel, Winnipeg, on Saturdav 
the 5> Uh day of January, 1914. 

Mr W .1 MeWhinney. K.C.. of Toronto, vice-president 
of the Onia.' Bar As.«Mation, took a leading part .n th. 
d!J«" io. uiH>n the proposed formation of a Canadian Bai 

\;,hi' lation. . •„ -r^ n e 

Durinu' the afternoon session, Mr. Frank B. Kellogg, of 
St. S Minn., retiring president of the American Ba. 
Association delivered a very interesting ^^^ . 3"' J^^, 
nfluence of the English People "P<>" f-^t^"*;^^;^^; :"!: 
n^ent." This was followed by an address on Education 

hv Mr. Justice Gait. 
' The annual dinner was held at the Fort Garry Hotel. 

at 7.00 p.m. 

lion E. Mcleod of the Supreme Court of New Bruns- 
wick was appointed Chief Justice to succeed Judge Barker, 
recently retired. 

William Douglas Gausby, barrister, of Hamilton, has 
been Ippointod ^^sistant registrar of the appellate division 
of the Suprcn.o Court of judicature of Ontario. 

Mr Gcorc'c F. Shepley, K.C, one of the most widely 

kno'^;- mlbers of the Lr in Canada, was --% i-.|^ 

rated as Treasurer of the Upper Canada Law foc^^y''^ 

u cession to the late Sir ^milius Irvmg, who held the post 

for manv years. The proceedings were quite informal. 

Ther; was a very large attendance of memb«" o he 
Tlicrh Court and members of the society, which -".^^^t"^ .^ 
to the le^al eminence that Mr. Shepley has achieved at . 
Bar the^ candidate being the unanimous choice of the 
members of the society for the position. 

The anpointment was received with gratification by «>e 

members not only on the basis of Mr. Shepleys c,uaiUK..- 

ions b" t iS^ause of the fact that his health has been re- 

;::::i. a significant feature of the --^^^ --^""^ 

was the presence of several members of the High Court. 




At a meeting of the Bemhera of the ^aiw Soo.Vfv t 

uicJdel . hvelyn I-itzgeraM Sargeant, Robert James Cle^ir 

Wi am R ddd ^'^;r^«^-J''-'--«. Rol.rt Jame« Cleg;" 

c t Til^^ P '•, ;^"'"'"' ^'"'^'^''' ^'^^''^ Henry M^e 
l>th. Gilbert Ctn^il Tarr, Avard Vernon Pineo Harold Fr,. 
jandman Stephen Alfred Herman Tmller ifvM 
ihmn- Conyn Balleny, Edward William Davf, « k 
,nently tl.y .ero pr.ent.d to Mr j'L oZ^y f„" t" 
Supreme Court, before whom they were sworn ^^ 

M. C Shee, who for 10 years has been associated in nrae 
•<e ,n Dublin with his brother, J. J. Shee MP^win 
l-ec^me a partner of M. W. MeDonald, of cllgary ' 

r^ewis H. Mart..Il, B.A., B.C.L.. member of the Bar of 
tK. Ironnco of Xova Scotia, ha. „.signed the position as 
r t rt;; roTi''"'^f '' of Fisherie/for Canad^T an. s 
W inL^^r^tX:-^ ^« ~ the practice of 

Attornoy-«eneral Grimmer -^f the Flcmmin,r p„k,-„ . 

'lleton, w 11 form a board' of instruclion forlhe' urie of 

practu-e with the object of securing uniformity in hand! 
.". and prompt despatch of all cases coming iZ^Z Co'rt 

The annual banquet of the Moose Jaw Bar Association 
M last evening m the grill room of the Royal Geor"e 
»'>'*■!, was a great success. The,^r=w i ' f f 
Trri His Lordship ChiefJusti^^r^l;^ 
e Saskatchewan Supreme Court, while Judge*' 
- '.egma, and Judge Smyth, of Swift Current were Jbo 

■ t 

1 ■; 






[VOL. 34 

after the bounteous "!, ^J^f /^^f^^^g^ 1^0^' ed in 

been disposed «^ -^.^f^^^^^^i JcM^ Ju^^^^^ 

the usual way Mr. P^^^eU called ^^ ^^^^^.^^ 

who responded to the toast iu« j^^^j 

explained, in opening that owing to the fa. tha ^^^^ 

been so busily engaged -^.^P^rSemd to tl^ tendeu.y 
had time to prepare a speech. He relerrea ^^^^ 

to give an ^-l^^f J^^lTap^^^^^ -"■ 

that he considered an 1«^P«"*^ *PP„ ,, i^ted out tli> 

ct>inion Ihrt this waa due to the perm«nen^ oi 

;:; co„ch,dmg, he «'«-\'° 'M,f:3rrf°'jattle<i 

,-.n Beich, and praised ita J'S^ /^^ Cthe asaUtan.e 

:LTp:^"-irhffxu. . the ch. 

Justiceship. r,T.r,Tvv«>d bv Judge Leahy, 

TViP toast " The Bar" was ably proposea oy ^ & 

„, S i^who has -tite'T.df r«ry':htrre -e 
W F. Dunn, police magistrate, made a very au 

''t: B. Willoughby, M.I^.^je^ ^^ ;f- J^^ 
maJcer.," and in his remarks ^^^^^^/^j^^ j^^iation, 
being made by he people of ^^^'^^ ^^ ^,,j,et, he 
Referendum, and Recall. I^JP^^^^f^^ion of the United 
referred to the difference ^^ ^^^^J X^ ^ think 
TZ:t toSHhic^w^^M ^ot be adaptable . 
British constitutions. 

after a short illness. 

The name of Hedley E. ^'.t:^^^^^- 
has Deen with Kerr & Thomson, barrister^ of HmUton 
been added to the finn name which now appears ^ 
Thomson & Snider. 




Eight young lawyers were admitted to practice at the 
conclusion of the examinations in Laval University recently 

C. E Bmchesi, Montreal; J. McNaughton, Montreal- N 

S; V^T", '"i""P' •'• A^ge-ffiea^c^ville Tsl: 
Dems Montreal and B. Brodeur, Ottawa. The following 

tamTrCoo'^rt' r ^*"'^= ^^ ^««^'"^-«' ^- ^e- 
Champ, T Coonan, S. Cameron, E. Marcotte, N. Paquet 

P. Bra,s, S. ^necal, H. Babcock, J. A. Demers, J. ElHo t 
A. Eegnier and A. Allard. -c-iiioii, 

Sir Joseph Dubuc, 73 years old, former Chief Justice 
of the province of Manitoba, died in Los Angeles after a 

LeSlSrTanf fo'" ^ '""^^ '^'^''^ ^' thTp^rotdat 
i^egisiature and for many years was vice-chancellor of the 
Umversxty of Ma^toba. From 1901 until 1909 he wa 
Chief Justice of the Court of King's Bench. 

J. W. G Morrison, who for the past three years has 
been practising law at Vermilion, has returned to Edmonton 

Vem'ih^n Jfr "' ""^ ''''''' ^'''''- ^^« business at 

Fonner Secretary of War, Jacob McGavock Dickinson 
announced recently his intention of resuming the praS 
tZZ ^^'"'^l '^''' ^ ^«P«« «^ ™-« thfn four^ yets 

Bencn of Tennessee and as assistant attorney-general of 
*e United States. He is a member of many of ChTcaU 
nost prominent clubs. ^ ^mcago s 

W M. Rose, barrister, formerly of Rosthern SasV bn« 

"wm rX* •T'.^P "^V- ^- ^"*-' of Rjinf ^h 
IcCrLv M 1, ''*^'''^°'^ ^"« «^^«'«^ ^i« connecti;n with 
STm ^Hn'fT' ^^'f-'o- & RoBe, of Saskatoon 

^hom««n 7 ' ? ^*' **^^° '"**' ^*« membership W. D. 

avebeen '.T '/ "1"''^"°' ^"^ ^^ ^- ^^^adden, who 
ave been in the office for some time. 




i ,U( 



if I 



KmH. j^ 








r^ V Poltnn LLB of Edmonton, who was for some 

^- ■ !", with the'law firm of Griesbach, O'Connor & 

time associated with the law n™ " . account, has 

Co. and has ^^^ely been practising on h. own a^^^^ .^ 

joined Messrs. E. B. Edwards, ^-C., and ^^« 
partnership, at 113 Jasper avenue R The 
wUl be known as Edwards, Dubuc & Pelton. 

The annual meeting of th^ HamiU^^^^^^^^^ Sodety - 
held January 13th i'^tbV^T.nffie;s were elected for tho 
t,e year were P-f J^ „g af t"e%ffi^^^^^^ all re-electcl 
;rTh/::;ep^o:'orthe distant secretary, which is a 

and W. S. McBrayn^, auditors. ir E P 

S. F. Washington, K.C., T^ C. ^'^^^^^f^; ^^J^. 

Cahill, K-C, George S. Kerr, K.C., and George y 

Staunton, K.C., trustees. 

The leKislation committee was re-elected. 

Btatate», ana the local 1«8»1 } £,^1 th, ,ork. Ar.sol.,- 
tntr St'^iX' ?o*Za':art p.o,ln.a, C- 

Kelly who constitute a committee m charge oi 

The tru.tee. -P»** f'V^^Xr^"- contr. 5.Kn 

xne uca „_ ^ ^jjg disbursements it.i.o.i" 

the year were $3,, anu mc 
leaving a cash balance of $340.72. 




A.^l.lttt'e'JTNi"!,;' T "T"'' "' "-= Ontario B.r 
officii ori*;,fn^,.t" ^"'" ™ '""'' " *" 

after some yea'" pLfe t vw'" •^t""''" '° '«'» "^ 
courer where hp h„ u '"°"' ^' »""«d 'o Van- 

became .eZ ^rt„: :X Z '^Tl^^' ''"'""^ >-« 
favour not onTw member, of r' "'i' '^ '"''""J "«^' 

'o.^t^' t::r;L:t'"Lt,o,rcotrro^°«", r^^"-'' 

baence of the^; */J''<^P''»*»' ta the ehair in the 
'Cietj^a reports were »r'; 7 !, "''"''"'' '''""■»» ami 

.otioT of W^X'k'c '°a'r/l Trr,"*- °° 

was resolved to enconr,;, JL . . ' Ch.aholm, K.C., 
le action in that behalf was \,<il7vl ■ "'' '«°' "'"' 

j= eiee^on of officers 'w:;!:^'^-:r::rSdt 

rer; Hon. Attornev-Genpr«l t7' ," ^^^'^n^n, trea- 

The membors of the last conncil residim- in all the .„■ 
I of the province were re-elected with ii. the coun- 
tori. c„™t, whioh has no's. itS.r"''''™ °' 


re, the meeting adjourned. ^' ^^' ^"^is- 





i i' 





The annual meeting of the Law Society ^J^^Jtg'an'i 
Johns, Nfld., recently, Mr. I>J--°' ^„',k^;"^^^^^^^^ the 
n.any of tl^^-tf J." /"^l vly floSung'condition. 

affairs of the ^"^^^^^^^t.'xnrLed^^^ all on hearing that 
The greatest pleasure was expressed ^y .^^^^^^ ^elay 

the consoUdation of Uws w^ ^o he^ake^ ,p ^^^^ ^^^^^ ^^^ 

;:-TSt^o^:"^ nj-rs of interest we. 
discussed after which the meeting closed. 

• i-^A »Uv solicitor for Kegina, in 

Oliver E. Culhert, of ^^^^^^f JrefbytsTofd^ 
Calgary, Alta., was sworn .n^s a ^^^ -,^\as practised 
Mr. Justice Beck, recently. f^^-J^^''^^^ of the Ontario 
with considerable P-XXd^Jam's Muir, K.C., pre^. 
Bar, at Ottawa, was mtroducea oy o» 
dent of the Alberta Law Society. 

A special meeting of the St. John Law Society -s held 

in the'pugsley ^fflf,^:]^:^^^^^:^ c\ai. A 
Teed, K.C., P'««>^«"*/JJ^;;"eTding the amalgamation of 
resolution was passed ^^'^^"'"^'^.^f.eports of tha Supremo 
the Supreme Court Reports and th^repo ^^^^ ^^^^^^ 

Court in Equity into one as l^adprv^ 5^^^^^^.^^ ^^ 
„.ended by the Bamste- So-^^^^ ^^^ recommended 

their last meeting in ^^^^^^^^^^^^^ pi,i,ion tried without a 
that cases before the ^mgs Benc^ u ^^^^^ ^^^ 

ciety of New Brunswick and the wnoie 
in their hands. 

Edmonton of Mr. C W. M.cKay, Bon ot Mr. v. 
of Bennington. 




Mr. Justice WhiSe^ Mr T^- ^^^'"^"g ^^e guests were 
Crocket, Mr'. 7uS G^r^.^rr'^slr F^ E T\ '''• 'r'''^ 
George J. Clark, AttorneT-GeneraT. ^'^'' '""^ ^°'^- 

»Ir. J. D. PalconbridgeZsided S^fi" '^ » r«t.„™t 
ly Sir Allen Avleworth 4; t .."^ S" ""» 'delivered 

3. McF^lane Mr H ■ S w. u "'■„^- ^- ^^ ^'"' «'■ J- 
'»d Mr. H. A. Beckwitt. '"°°' *• ''"«'■ McLaughlin 

"la o( the firm of Bourn, & McDonald h„ be™ .p. 

I J 

ii ( 


'f ' 







[vol. 34 

pointed dean. Associated -"^ ^\?^:Pr^',tffin" Mr' R 
number of eminent barristers. Mr. Martm Griffin, Air. K 
M. Macdonald and Mr. R. W. Hjnf gton are «. 
lawyers who will give lectures, and the names of others wil. 
be aBBOunced lat'er. At least four leetnres a week wUl be 
given each student. 

Probably the most dWinguUhed gathering o' Cr^i""" 
lawyer, that ever met together at o„e "^ -^ ^°'° 
dinner in the Chateau Laurier, recently, as the guest. 

'■ ^Th"re*^r.bout',"y in the gathering -r.^^^^: 
from all parte of Canada. Those who were not K.C 
SeS le'. than half a dozen. There were men who ha 
fibred in some ot the most famous cases m the li"'»'> "' 
tKoiSn on: many had worn their silk and argned ess,- 

rnt IT^i^r'^Tul Hon. ,. D. Ha.™. 


""7™ decided to form . Canadian Bar Association "d 
. tentSe eoBStitntion will be drawn np and tenssed 

.t„ Z»tin<r to be held in Ottawa some time m the ncu 

Stte MShUe pro^i»<^i'l Bar associations and co.n.y 

fr^cie":. will lie'invited to become -^-'f^ J * 

reject. Those who w.ere gnes^ »'„ *' f ,X J. D, .-. 

tano, were: F. ^•/^^^'.^■^■' f, * ^-f Russell Snow. 


Thompson, F. D. Hogg. 

The Medicine Hat 3fornin, r*'-- ^^J^^ncS-i^ 
ports that the new city solicitor ^^^l \«J^«^™, ,,„. 
Summerside, a practising hamster of the ^;"t™^/^j^^ 
vinces, his ;ngagement having been recommended bj 
committee having the matter in hand. 




The results of the Nova Scotia Bar Society's law exam- 
inations held before Registrar J. L. Barnhifl, haTe be^n 
made known. Eleven of the candidates pass d the flna" 

vZuw'j' M ""• ^'''''"''^' ^'^*°"' ^- D. McDonald 
M 7' ^ ^- ^''"'^y' Halifax; E. T. Parker, Windsor- E 
MacKay Forbes Glace Bay; V. R. Smith. Amherst W.' D." 

rn^uche °°^' ^""^"'•°' ^- ^ ^^^^'^^^ Tata- 

Sir Lomer Qouin, Prime Minister of the province of 
Quebec and Hon. Rodolphe Lemieux, M.P, for Rouville 

Murphy, Berard and Perrault. It is understood that neither 
will at present form any new legal alliance, their time being ■ 

ml ^ r^ ^^T' ^"""^ '^ P"^l'« lif« «t Quebec and 
?r ?• ^nZ ^^ ^^' ^^'"^ ^""^'^ ty Messrs. D. R. 
Murphy K.C L. P. Berard, K.C., and Antonio Perrault, 
and yJl be known as Murphy, Berard & Perrault. Mr. 
Murphy, the heed, is looked upon by his confreres as an able 

JI't^^ t^^'l- .^^' ^°"^" ^°"'° ""-^ Hon. Mr. Lemieux 
ook Mr. Murphy into their firm when their former partner. 
the present Mr Justice Martineau, was appointed to the 
Superior Court bench. Consequently his taking the plaee 
as head of the new firm ig what would be expected. Sir 
Lomer Goum and Mr. Lemieux, who have just retired from 
active legal work, were at one time partners of the late 
Hon. Honore Mercier and were both men of mark at the 
Bar of this district. While both were active in political 
rork, they gave a great part of their time to their law office 
rntil Mr. Lemieux became Solicitor-General and later Post- 
naster-General, and Sir Lomer minister under Hon S N 
arent and later Prime Minister. Hon. Rodolphe Lemieux 
eas en^ged m a great many criminal cases and was also 
.rown Prosecutor, his eloquence coming into prominence in 
nany a cause celebre before Judge and jury. 

-,i^'^'''D^^f T.',^""'*"' ^«« ^^^''^^d his office to the 
nd Yonge stieetf ^ ^^^ ^°™^^''^ ^''"^'°^' "*''°" ^^ ^^^ 





•t '1 






Judge., the, m«.t be -"'^^ ° /'^ "^b,, i„convenieacei. 

real coin of the realm and al«o suffer ovn 

"V .a, the e.ect 0, a decii^on armed .M theJudg. 

at a meeting to O^^^t »d T eoeultalion l.a.l 
all the Judges were present, ">» , ,,,1 and 

particular reference to the "«-■,■'7"^^^lJ.g «»'. «'»' 
L fact that it is only fc5J= f^^'j^Tgo on. The clima. 

:^*hrw^n r or: dr tes l . >^^^ - »•' 

found read, to be pro«ed^ ..fc ^^ ^^^ ,,,. 

At the opening »« *», J™ '°^„<«a the decision »t 

r-T r/"«Th.SS'th7di:S«»n" said he, "is 
the Judges. ine y^roit ^^^^ jg ^ot 

that, ^thout «"P'Tt ^rb rlTou^'of the list, and 
heard when re«:hed, it JiU °= "'"^j „, the list «U only 

the libert, ot '=^'"'"« '' '' 'ruce and pa,ment ol tas. 
"'/""""tht' if "ill r^ cX ag'ail ».il e«r, 
and even then it wui """ . .x^ <,{ being heard. 
case on the list has had -^ ^^'^'^'^'''^ 'l,,Jr,,ie, .hUe 

"Hitherto, it ^-%^rS.It extra IS -ill h«^- ^^ ^.^ 
the work is so «<>'^g««*«,^J^^t^f J^e tHne of the J«Age. r, 
held, and at the same time hidf the tu 
wasted hy cases not heing ready.' 





By Arthur Underhill, ix Law Quarterly Review. 

Ii./ii'''^" ^°T' *^' ^^'^ Chancellor, in the course of 
last Session introduced into the House of Lords two Bill, 
one called the Real Property Bill, dealing with divers' 

bearing the more modest title of the Conveyancing Bill 
intended to make extensive alterations in the practice of 

orir"?-.?.' '"° ^"'«' ^^^«^«^ (^« -« inevitable) 
J A k'* *^'y "^"^^ ^"^^ ^^^" consolidated there 
Jro^»W ''! ''"' ^ considerable gain in point of lucidity. 
Probably ,t was considered that two separate Bills were 

onP^^'jfh* ^"^"^'^tfy '•^^s^n^^ so that opposition to 
one might not imperil the other. 

to i^fJ" ^T.^'^^^ ^y *^' ^^"'"" °^ *he Law Quarterly 
to write a short account of both Bills; but seeing that 

nlSV'"""!"* '^"^ ^'**"' •* '^ ^possible, in the space 
allotted to me, to give more than a rough sketch of the pro- 
posed legislation Therefore such criticism as I have to 
make will be confined to questions of principle. 


t. k!^"^7 ^''"'^' *^' ^'^^ ^'■"P^^ty Bill seems to me 
to be a well-conceived measure. It purports to make amend- 
ments m: — 

(a) The general law of real estate. 

(b) The Settled Land Acts. 

(c) The Land Transfer Acts, and 

(d) 10 abolish copyholds and other special tenures. 

10 take the general law first the Bill (Part IV) nro- 
P08O3 to amend it irt ihe following particulars:- 

h Words of limitation are no longer to be necessary in 
conveyance o th. fee simple, thus extending the pro 
usmns of th. Wills Act to conveyances inter viL 

twpntv J''l''/"/° ^°^f°* f°t'°gently on his attaining 
t»enty-nn. ,= to be construed as vested subject to be di^ 
^estea, a useful provision which will bring all infants' 
^ta es ,.thin the Settled Land Acts, and alfo witif ^c 
M ot ttie Conveyancing Act, 1881. 


. i - 






[VOL. 34 

3. AckBOwledgment^ of deeds l.y n^arried women, and 
eimple. ,,,„_„ Pnlt is reversed in the casr 

•"■"e. The court i. -rrtidrar/i^. ■ »t:..':- 

*"',Tl Duty oW.« .nd P""- /'f * *S:; 
.„ 1 L reeistered a. Land Charges, and, .! not tegiatete 
A„ hf neiUeible by mirotasers or mortgagor. 

, purchaBOr for «lue « ertendod by .cc. 48 to th. ..-..n 

°' Tw under seal on mortgage, are to opera.e a- 

"TTdee'd purporting to transfer . " mortgage " Is .o 
p J, without mo're^'tbe le^ estate and all the r,ght. o. ...c 

""Tender an open co.unct, tbe purchaser is to be re- 
stricted to a thirty years' t.tle instead ot the forty >ca 

to prior equitable ones. ^^ ^^^^ 

<n mnoh for amendments of tne geneim i 


to be .r^iTSeeB of the compound settlement co„..- 
ing of it .Bd any subsequent ar""'"*^: ,„, „,„e i, 

2 The express restoration o! an eiutmg ine 
„ot io preven't the life tenant e-eising t,e P- 
tenant for life under the instrument bj which the 

tion is made. inv icn?^ - 1 

3 The Court is empowered to sanction an> a 

'"%'The"urS:r' o??life estate to the ne.t remaind.i 
„.nU to itinguish the powers of the surrenderor. 






.» ^J!::iZ:t:,:^';; -' 7; - ;-. 

oufirht to he tran«forr,.,l to that gection ^ ^^' ''''* 

man, trustees for purposes of the S tnol in^i v ! ^"^ '" 

wthst^din, t,.t L L. for.t p.;::.::y:r;e .^r^a^:^- 

entire fee shnp.e, L^l ^.^the 0:^^^:', .' t:./:? f^r H^ 
.0 a tenant in fee (or the absolute owno- of a term f ^ js) 

ftZlr r''' '"" "'''' "°'^«^ " Boctlement Hi hor^' 
Ithough such powers were incident to a tenancy in foe with 

is :;c,'rfu7one."'"^"*^' ^°" ''' «-"^-"* ^« -^ 

8. Section 1 1 gives all the powers of a tenant for life 
under the Settled Land Acts to the trustees/whe^e there ! 

:rairrctr " ''■'- ''- '^^ ^-^ ^^^-^ 

9. The ScttW Land Aol powers in relation to married 
. n,™ are ,UgMy amended, a. also are tl,e provi'on, ^ 

12. Lastlj, sec. 25 contains a useful provision tl, .f if -f 

:::":"„i:.:t^ia?^L'e^'i"n rei4?^ ^? ««"'» 

bh- refiiHPrI +« o^ • l/ ®®***®' '^'^ has unmason- 

Di.\ relused to exercise the statutory nowerc, +h« r. ^ 

M,,er a m„rp;f;<t7ar:htlirl,? 

n ne m a a. e, or whether (a, i, eontinnallj done "pra^' 

'<■} h„ secunt, can be ahifted from the land JutoZ 



.» i 

J |I> 


'J V 


F-! i . . 

fc-4 J^ 


capital n^ney prodded I. ^^^^^^^ :r^ t 
mad. .'ear m Bee 15 ^^f^^^^'^f.l ,etttd land, bu, 
cumbrance not only on other pajj* <»^ ^ ^^ ^a^^ ^ct. 

considerable opposition, fo ^ PJ^P"^ ^^^ ^J^^ tcnur.-. 
one blow all copyhold, ^"^t^^' ""^ "^^ t^^ all land 
and all perpetually '^«n«'^'»^^Jf .J^^^ll: ^ ordinary 
held under these tenures or ""J^;;";;;!,,^^ intend. 1 
freehold. The BUI, however, ;«" ""^ j;^; """ lords and 

to preserve the ^^^7-^.,^^^^^^^^^ fines, reliof- 

stewards in respect of quit rents, erne ' ^ ^j,,,^. 

heriots, dues, forfeitures (other ^^-^^''^^^^^ ^jthou, 
ating by commoB law aBsurance or for alienat 
license) and all rights as to ti-nber. 

of being compriOTily cstinguiAed cither by me 

frail ^d°w on the Wack ram 1 ^^^^^ ^ ^^^ 

this part of the BUI, ^^ P^'*'^"' . , . * ^j^j^y widow? 

But (as it necessarily «^^t«» *^^"^^*^ °ted 1 

and widowers) it might well be ^^PP^fJ"^^;/^^^^^^^ >,. the 

Lbstituting for the e^'^^reaStlwe cult - P^^ 
curtesy and ^--^ ^^^XVa'"^^^^^^^ - ^ --^^• 
^'i TJZZl rurvtrgtuBW or wife. 

matters dealt with are as follows:- 


loMi) ii ildank's bills. 


Part I of the Land Transfer A,.t lao' 
amended. In it the expre on " I^.^^J '"ater-ny 

will itt:.:7 r ^''' '- -'-'^^^^y <^''p- " bT?: 

coL n ord ;' " ''^'"'^ "^ r^ ^'■'P''«'"«"- This lot 
course, ,n ord-r to carry out tho provision, above referred 

are not t / . f *"'^ '*?^ ^"''^ ^««' °°^ »<> ^^'Po-ed of 
Si V ^T""' representative. An a.sent in 

convev^ar "ani'Tl '''"'•''T^-^t'^^ '« to opera.e as a 
chase? Tl;.."i,".^^ ' conclusive in favour of a pur- 
chaser. .1... „llo^ n^ matters are also dealt with:- 

by cautionstMh'' 'r "'"''"^"' f ^^' ''^''''' P'«*«<=t«^^ 
Dy cautions Oii tJi. r.f,n3lei ,. auM.orizcd, and the greatest 

la-tude ,s gjv.„ to the registered proprietor to deal with 

h« registered estate bj way of mortgage or charge 

2. In settlements nf registered land the tenant f..; - 
i^to be registered as the proprietor of the fee n ', 
term of years settled. ' 

3. The description of land on tliC register ,- ,n », 
accordance with the usual practice m wdl-drafo'' .. 
ances, i.e.. is to be verbal a. well as by referen. ^ to pi.,, 
after' fLTT? T"' "' ^' ^^"™^ automatiuiii L^ 
Ster ' " ^'' ' '■"''^'" """^^" «f y^"-" - ' 

of regilttd'llt: ^' "^'""^"^^ "^ ^" «PP'y - *b« -e 



' nc 


I i 

i ■ 




' .1 

J . 
I ., 

I ! . 

■ < >l 


This Bill is more ambitious than the Real Propertv Bill 
Its object ,8 to make the title to land approxTmatelv th. 
-.0 as the title to stocks, while preserlTTe l^^eld 

ruK, .8 of law relating to freeholds. Thif seems o me 
^ me to be a mistake. The law of real estate" nw^o 

ffi 1 and complicated owing to the tinkering andilt 

Is fnr !" i 'u",^''^ * scandalous state of affairs, and 
eall. for something bolder and more sweeping than a Bill 



[VOL. 34 

which i8 admittedly only designed to enable a purchaser or 
mortgagee to ahut his eyes with safety. It would be in- 
finitely better to abolish uno flatu tlie whole of the existing 
law of freehold land, and to substitute the law relating to 
chattels real, as has been actually done in some of our 
Colonies It could he done here in a Bill of moderate com- 
pass and is the line of least resistance, and P^ac^^tion^rs 
already familiar with the law as to chattels real would fin<l 
no difficulty in accommodating themselves to the new order. 
It would also have the advantage, incidentally of rendering' 
obsolete the whole law of equitable conversion and 'nhent- 
ance which, now that the Settled Land Acts have permitted 
life tenants to sell the family estate and to substitute ho 
proceeds of the sale for the land itself, is no longer of the 
importance that it once was. If coupled with a provisio.i 
enabling prooerty of all kinds to be settled by way of trust 
for an interest analogous to an estate tail,^ the suggested 
reform would answer every purpose. 

The Conveyancing Bill does none of these things. It is 
designed ^and very cleverly designed and drafted by m. n 
whose ^ing and ability and practical acquaintance wj^ii 
the subject are beyond all question and whose industiy i= 
beyond all praise) to relieve purchasers and mortgagees of 
the trouble of investigating the rights of persons claim. n-: 
under settlements, but so far from simphfj-ing the law of 
real estate it would render it more complicated and technica. 
than ever. . 

However, that is another story, and my ffsen* businos, 
is merely to give an account, more or less intelligible, of the 
contents of the Bill. . , , ii 

Now, as every lawyer knows, in the case of stock the 
entire legal ownership must be transferred. In other words. 
it cannot be divided up into particular estates and remain- 
ders, although limited interests, corresponding approxi- 
mately to particular estates and remainders, can be crea,oci 
Tn set'lementa of stock by vesting the stock in tru^ees upon 
trusts for persons in succession. The °«tensible objeo o 
the Bill is to extend this principle cy pres to land, so mat 
purchasers and mortgagees shall henceforth "^ly be re- 
quired to investigate the successive transmissions and re- 
fers of the entire fee, or of the entire term, all Me estate,, 

•fittffcited by my Mend Mr. C. P. Sanger. 




remainders, shifting uses, executory limitations «n^ 

? tur^;tr«jtr ^?^ ^^^-^ -rtTtr rn;^ 

^'.e title.^ ^et^::^^:l^,:r;V^^^^ ^ept off 
tenant in possession^ nr. +„ "^"^"^^'^ i^s (other than a life 

/'««*«»), or, in t,„ case of , w lan^ bX^'""' «" 
'Scheme explained below ^ ® ingenious 

vi J^s^^fi::;^ tx-^^s^i^^i ^^" p- 

created (except by means of a trust) hi] h. m'? ''° ^ 
"nd (2) terms of rears absolut? fi ^ ^^^ fee simple, 

"ithin twelve months ^'°° '^''* '° possession 

conLfab^ir trsiif^^ r^^^ fr -' '^ 

I should not have ventured tooZl ? .'°'^ ''^"^ *""^«' 
^ible object of approxiwl ' '*' ^''^"^« ^t« o^ten- 

^toclc w^uld ha^b :n rS Tn 't1 ''f' *° ""^« ^« 
I think) it is overlaid y^Uh ? * unfortunately (as 

«ith a strange 3 ''^ ' T'V'^ ^'^''^' '""^ ^'^^^^''^d 
tl'o sole objeft'arpait V ofl""'" "'^'"-^^l^t-e. with 
«•"! terms (indudfnJ " 1,. ^\ ! '^"'^'^^^^ ^^^ «™Ples 
n-ortgage.) k the "ameTX J:^'^*? ^"' ^^^^'^^'^ 
?a?oes, as if they were rnrrf '/"^ Purchasers and mort- 

Whether thifC ineS" ^"'^ 'f^"^ '''''''■ 
• 't it most ee ta X \TT T ."'* ^^ '^'^^"^^^^ ^elow, 
-ak-ing the t le t" ,and Z"" " ""^ *^^ ^""^^P'^ «^ 
tl'e title to stocL thr/ "PP™'^'"^^*^ ^« the simplie ty of 
equities. ' '^' '"""<^«t'on of which is to ignore all 

But. before discussing thi<! ouestfon ,> • 

A., fcx^^ras^^tirdt r- ::;7 ;^T?f «^ ^"« 

capable of being disposed o^Jul I J' ?^ '^*" °«* ^^ 
-tate other than a '^e simpl or „, '" 7 " '"''' ""^ 
*" take effect in po 'essio7nnf i . TI" "^ ^'^^'"^ «^^«^"t<^ 
afr.T execition So XT ' . t' *^"" ^^^^'^« "'^"ths 

-non allow? all eii ir u"' !^" ^'^'^ «^^* -b- 
t-e created by .^l • of tn, t Tt '"''u '^ ^""^^ ^^^^^^^ *'> 
"•^ Bill H-ould authoril;^ """''^ '''"'' *^"^^^^^' ^hat 





[vol. 34 

(1) Legal estates in fee or for years only. 

(2) So called equitable estates of all kinds by the inter- 
position of a trustee. ■.u^„^ rU^ 

(3) Eqiuitable estates in fee or for years without 

interposition of an express trust. . , „,, 

Then a little later on we fine! both equitable and leg^l 
estates subdivided into 

(1) Proprietary estates which must be fee simples or 
terms of years legal or equitable, and 

(2) Subordinate estates, which include not only ^aii 
.states which are not proprietary (e.g. life interests) but 
also all proprietary estates which are subject to another 
propneta'- estate (e.g. equities of redemption . T en we 
have "paramount estate." and "paramount interest^. 
terms which are only relative to estates or interests 
are, am them, " subordinate." 

The Bill further contains a list of " paramount interests 
(as distinguished from " paramount estates ") which inc 
easements, the nght to enforce restrictive Z^^^^"*^ ^ 
which a purchaser has notice (a purely equitable mtere-t 
This) and the estate or right, "in respect of occupattott 
of ev'ery actual occupier;" but excludes Us pendens, jud,^ 
ments, deeds of arrangement, annuities, and any charge or 
Habli V place.l upon a proprietary estate after the co.n- 
n,encement of the Act by force of any Statute, and ar.y 
restrictive covenant of which a purchaser has no notice and 
(in reference to settled land) any charge estate, or interest 
capable of being overreached by the Settled Land Act. 

Of these estates and interests, proprietary estates wine. 
are not subordinate, and paramount interest, are alone o 
b dlclosed to a purchaser or mortgagee; and proprietary 
estates are only to be capable of being di^^^osed of, o a, 
transfer the wlK>le proprietary estate, with or wtthout 
nues of surface, or as to create a term of years, an .^se^ 
ZZ or a rent. Anv attempt to create any other Km;l 
Tt r;s will only operate to create a trust or subor ,n 

estate or interest. All powers, ^'^^^^'"f/^-'^^^th ' 
torv limitations given to any person other than the P 
prietor and enabling such person to convey a Vro?ne^^) 
Late are abolished, but all such_ interests are to ake ct^ t 
as trusts and create subordinate interests. "Rut this is ^M n 
Tut^^dice to the priorities which ^^^f ^^]^^ 
by reason of the interests being legal if the Bill had 






VoJe^fo'coZ/?:"^:: :' ? P^^P^^^*"^ -tate is given 

>« If he were absolutely entiS L^.- ^ T^ completely 
>nly to such P^rarnoLTlulltt7^ ri^^^^ 
'urchaser without notice r«S I ^"^ """^ ^^^^^ "^ 

quitable proprietar; e ate^ whii ^ "''"" ' ""^'"^^ -^ 
Tietary estate which dealW th^' T°"'^ "^'^^ ^''^ P™' 
"terests as he may have noH^'/"^ '" '^"'^'^ paramount 
rdinate rights as 'ma;"be TXi'd t '^ r" ^"^^ ^"^■ 
■bitions at the Land RegLtr A 1 i ''"^'"°' ""'^ ^°- 
i" acc^ordingly hold the Tropr'iettry' eSr' " T""''''' 
ned (whether rightfully Tea ed„T T'*"^ '" '"°- 

'arged from all subordL^r f . '""'"^''^ '^'" "«*> dis- 
abilities, rights and e im ''''\'''''^ ^"t^^ests, charges, 
.ties. ^ ' "" '^^''"' '"^l"ding unprotected death 

ier of date, or to priori vL!i P"""ty» refers to 

>'es of e,uitV. In t'h 7 Lr eat"a' el^" f "^" P""' 
t notice of a prior eouitflhTr T "^ "^o^fgagee with- 
rnder th. ^ZZ^Z^^J^^' '- -->tv. 
!e must contain (as now ^ ll^v' 1 r^"'!' "" '^^^ract of 
• with the entire fee or entff ^^r ^""^ '^"^*«^^« deal- 
ieh affects the vendor Tl' 7'\ ^'^ '^' '''' "^-^ be) 

(J) tut ^™o.,„?i: r./^^etairaTr" '° •" 

"^ a third mortgaffp of fhp fon / u j- 

V. lZ%r,JT °' "" '« (™t»"'i"»'o .0 (a,. 
'; "°° '«) but paramount to (f) )• ^ 








[VOL. 34 

Of sale, &o., in every tenant for Ufe instead of - /^e tn^.te 
of the settlement. That policy is, of course ^''f'^X 
actual assimilation of the title to land -f ^^^ f ^ ^ 
stock To solve this riddle, the authors of the Bill haNe 
rnS' it compulsory that the fee simple or term, the subject 
S he sett;:Lnt/should be vested from ti- to Ume (pr. 
ferablv by deeds other than the settlement itself) in tlie 
perfon who, under the settlement, would have the power. 
Serred o^ tenants for life and other hmited o«-iners bj tl.. 
Set led Land Acts. By these decls, trustees for the purpo... 
5 he Settled Land lets are to be appointed, and (whero 
des red) extensions of the Settled Land Act powers are ,o 
b g ven. On the death of a life tenant, the fee or tern 
est' m his personal representative, f « f ^ W"- .; 
death duties, transfe.s it by a similar deed to the n. .t 
p on entity under the settlen^nt. A V^^^^J^^ 
Lee cannot go behind these deeds, and is entitled to assu u 
fhltthe person to whom the fee or term - - T^^f ; 
all the powers of a life tenant under the Sett ed Land A.ts 
wthout any further inquiry; but of course ^^ has to pay 
witnoui nuy trustees. Instead, therefore, 

the purchase money, &c., to the tmstee.. nue^tion 

of a purchaser or mortgagee being ^!>^"^^,.Y^*^^^';',^"' , ^ 
whether the vendor or mortgagor is a life tenant witi n 
The meaning of the Settled Land Acts, he is presen 
wi^h a kind of certificate<l life tenant and certificato 
Trustee' with whom he can deal within the hmits of 
he Set;ied Land Act powers, without further investigat ,- . 
Therprovisions add to the complexity of the scheme, bu 
robably thev are inevitable, having regard to the genera 
nolicv of the Sealed Land Acts; and I think thev ..udd 
^:::Sblf 1^ leful even if the rest o^.^^e Bill w^r^dro,^; 
particuarlv in areas where registration of title is con,, 
son as th^v would relieve the Registrar from the nece^.^ 
of ;o struing settlements and automatically presem ''.m 
: -th r roprietor whom he would be bound to reg,s er 

It will be seen frr.m the above, the scheme of th. 1 ■ 
i. ven omplicated, and that the complication is n.. n^ 
;,„d by tlfe supposed ne<.cssity of dealing with e, ..1 

Ipls and Spiitabl. terms as propriet^^s^ - I; 
is «ubm tted that there is no .uch necess.t> tl..t '* '. 
;,:;;.tent with tl. root id^ of ^V?ro^^^^^^^ 
to real estate to the title to stocks, -"^ t^at. .n Uie^^ ^^^^^^ 
the only effect of the Biii in shurTcmi^:- .•..■;•-.-- 




will be to eliminate the titles nf i;,^.* a 
under real estate settlemen ! sub ^ . '''""' '°^ ^^^ers 
cated tona„t for life S S '"^'*''"*'°8^ '««tead a certifl- 
"'ay safely deal. But iTso ut""" " ^"""f"''' "' '"'^•'tg^^ee 
If the Bill were shorn ofa'l .".r '"'"'' """''^ ^' ^^^-^'^ 
•• settlements of lam! '''"''' '^^^P^ <''««« relating 

'-irb:a^::riTadir;:p':r -^^^^ --^^ ^'^^■ 

'-- ?o oonfTse le^llSe V^^^^^ ''"'•^- "' Z'- 

'■rely "darkening counsel/' n h a^w Jh %"'""*^ ^^ 
auds resulting, confine fhp Hfi T' ''''"* «"^^' ^^eat 
e legal registered titl wbv . "' '^' '"^ ^^ «*«^ks to 
the Common llv.- and eonfi ..''T*, '' ^''^ ^'^P'^-tj^ 
'«tes, at the same' tTme est^L nl ;"^'' '^"'^ ^'^ '^^«^ 
-pies and terms of vea^s IZl,? '^'' ''^^^'' ^« f«« 
" Hl^e other e^uiJafe' ^ ^^m^^^ 7;ties of redemp- 
'ding on the egal owner nt "^'^^^^'^^^ interests 
-ities of enuita'bl rrtllbrde; '"/ T^^^^""^ ^^^^ 


' - 'deeply' impreZdt^^ he"; t":h:^^'">*^^ 
pr IS none the less fhp r«ai , ^* * ^^"^ S'mple 

.a, mortgage iTbl ^ zr, ::ren'; '" ^-^'^^"'^^ 

that thev have felt cnnJJ M ^ ^'^^^^ '" outstand- 
-t.s a. propriltln' elfes' '" '"'"'^' ^^^«« "^"'^«b'e 

'he definition of "TllL ^^''''^ '''''' ^^^'"ded 

- Bill stan,l have t. T r^ ''''''•' ^'' ^'« «-«"'d, 
1, "v the n.ottgat;::er':;th :, Ir «"""^ ^^^«^^ 
; O^,hise,ui^ofredemp^;'::;:e^ ''"'''''-' 


«"d it n.av',,.",;j'^ 7,"-^". - "tinet express 
•""I I iinn add ought to he obv^*^ i-- " 

I XXXrV. c.r..T.— ^IS -titr 1. ;;■. u 


266 X«B CANADIAN LAW TIMM. i''^^'^^ 


and I frankly recognize that ^^ J^^^ f^f J^^^f fee or 
suggested) limited to /eahngs w h the leg fe^^ ^^ ^^^^ 

X;.X''^ltt:^2r^^^^^^^^ fee simple . 
"sted (1^ it otn is) in a mortgagee who has pnonty ove. 

the settlement. difficulty might be met 

It is, however, suggested that this d^*^"^^ jj^^^ ,,,„„, 

by enacting ^^f^^^^^:^jt::^'::^.:^Jfot an ...- 
land, the tenant for life to whom a ■> ^ ^^ j^.^ 

table fee has been made "^^^^ *^^^ /^^^im by the BHl. 
shall have all the P^^wf Sate is oltanding ... a 
notwithstanding that the ^^^ f^**"^ ^^j elainnn^ 

mortgagee, but subjec to ^^^ "«^;^/' ^J^ns of the H.ll 

to their complexity. infants' e^t <ios, 

The Bill also contains provisions as to infants M , 
^ . +„,ct foT sale appointments of new tn.. It f, 

dispositions or trust for s»^^' jP , .^ ^^^jes (substituting 
appointment of special execu ors death ^J^ y^ ^^^^^^^^ 
the purchase money for the land ^«\ ^^^^^"^^^^ ^j , ,,,o- 
.„,ess protected ^^^ ^^f ^^^^^^^^^^^^ by i.=. 

prietor* and the l<fg^"g ^'^* „ x. ^^ic protection of horn 

^Cwte:" ^^" -- "' . -->" <° -"""-'^ 

,„„™n »tetr.ct.. simplify jearcheB «°^ ^ ™ „ •,»- 
p„,d..«!rs and mortgage.. /"■» j" *^SSl. of ti.v <" 
lions of p«\igr«. »n<l «"^;V.i!,,lt to it U „o«. B„. 

I'r. Z :2»Lr% .0 it. oon,pi«iW .na o„- «r„-, 
the Umitation Acts. ,^ con-true. and. \nA^ 

„ y'irr,"» ,. . »„,., .,■ 

ir'p.™s™pii' I"' "»'' '"• 




acr«„.ulated round ttst^tttr;?'-'^ "^'^^^ ^''^ 

real. But if that is " too Lvl 'f' ^'^ *^"* «^ ^''"ttele 
ti'e present Bill by el lin^. ' ' "'*'" ^ ^'^^^^ «''»Plif>- 
"tie in the manner al^ ."^ '^"'^"'^'^ «^'«t«« ^'om the 

I think, w:rrf T^; :tr «!? i :'"" *'^ ^'^' ^°"^^' 

tl-en in my view it LT,M 1 * ^^"* '"'"''* '^ conceded, 

of sections were simplified and add 1 ? ' Rll/'lf ^^'^"P 
Bill as amendments to the H^H]JT f.[ *' * '*"P*>rty 
would, I think h^\n.\T ^^"'^ '^'^'' ^^^ "et result 
with ntire S o^ entir f "' "''''?'[' "' ''^'^^ ^ dealings 
ostensible option of thir^'^!^"? "'*" «'" '^ ^»>« «°^^ 

stands it seer rmefhafl fK^'' "*'"• ^« ^^^ B^" 
ceilent illustration Jfl. P "u^"' P^*^^'''*^"^ afford an ex- 





[vol. 34 


Municipal Law-Municipal Taxation - VUlage or Toun 
Muntcipol Law^^^ ^^^^ JTAgricultural Lands. 

, TT A .ho Cities' and Towns' Act, real properties 

""a «'at"r sU-dara or b.,i. of U,.ii«n» adopt..) 
2. If a lower bv«"i standard should be 

applied to each and every assessment being 

'^'Z:\i...d ..M. . .own 0, * w..K^. - 

'"T WlJ'twn or city l.od. within to ,«iden„.l 
demand, as building lots and to w ^^^ ^^.,,,,. 

0/ Jfonlcolw, 1913, SO R. de J. 1. 

Where a rifht of appeal, by leave of a Judge «f «« 

teen days: Calumet Metcus Co. v. PAansg^, 
de J. 21. 





Female DonorT ^ '"*"''"'"*'''^ •^'''««-^* made to the 

sities of two female d„ L I i ^' ^^ ''"^ "*^" "^ces- 

-If and to choose rtadesmn T^ '"'' P""='«««« '>>«'- 
donors will be provid d for A l"'" ^«*f "^^ments the 
newspapers by the donee that d "T"' P"^"^^^'^ ^" ^^« 
for those purposes wS eh «r /'" .""* P*^ •'"^ «''^«"«ts 
not constitute rraUtide wH^ .^'^""'^^ ^^ ^^^' doe« 
and entailing r vocat In of i f ^'""'"^ "' ^''^ ^'^^ 

Frank, 1913f20 R d^J 26 "' ^'''•' ^'^«'''^« ^• 

Pretation of Statrfes. '^' 

I'allf nrnwr^i^^L^' ^" .^" T'^ *PP'*"' *« ™"^ins picture 
occasionally or incidentally. ' " '^•^P^ajeo 

f^>^''rnl;rd"-:b''tt"r-' f '"^ ^^"^^^'"^ performances 
AanirT) ;l\*'''.**"^«' P"«PhernaIia ^^^^ner^, me 

-t fali under thl::;"?^'' hI' TP^"'^' «^ -*«- ^o- 

Narly on the s^rl^S'eef th7 ^V" ^'•^'^" - 
performance- such pT«wfr. vaudeville acts at each 

»d not as^; ZtilT^Z'l'j; '^ '^ ^^«-^ - ^ theatre 

I ">d tha. iSrltZn ad JS' '^"l* ^' '""^^"^^^ «t"^tJy 
'We to the dTf?ndant ?^ "^ '' *^' "'^'"'^ '«^«^'- 



[vol :h 

Transacthn-Error of Law-C. C. 1018, mO. 1921. 
In the present case, tl.e agreement bears the eharacr- 

procal concessions. , 

' It is of the essence of the -ntract of tran^ac^.^ i> ' 
it should not be disturbed for error of law. Cr^pau^i 
Bellehumeur. 1913, 20 R. de J. 36. 

due to Climatic Changes. 

A „,amcip.l corporation ->"»' .J^^^ff ,^"1 ':;„;: 

.odden cliii..lic change; Otrard v. CI) of Monrre 
20 K. dc J. M. 

A, regard, the «,rpor.tion ^^"•'■''X'JZZZ 
the pWntU did »°V'*™, Tribal a yfar Wore ■«... 

t *:or:Ve°.rr :iXaru;o:; u., *,.. 

" fte plaintiff, but the .and in a.-'-. -« j',, „ rf 

e,er .ince, .aa alway. "•=* '-'i^^ Ve^^'for' ,„o « 
by plaintiS's predeccasors .n l.fle to tne p 

aVghway, and .t U,e ^^^^^X^'^ > «' 

predecessors m title, the aeienu r ^^^^^^ 

•'-y^rt,'1h" °:.:/°-^^h" »i.: li St ^a..' .i«" 

S:c':tid:«dt;h;ir-,r„ igh^^^ «*': : ■ ' - 
of St. Eloi; Belisle v. Gagnon, 1912, 21 «• ae 




C. cm '"'"'^ f^«"'-^/or-.l/. C. ,07 2HS. 337: 

In the present case, even if the defendant l.a.l s.,hl th. 
IToprtv upon which his realty ..ualificatio J , tVt 

aJ^\^'''^ ""^ \ ""^'"^'" "^ * """'icipal (ouncil cannot be 
d«.lared vacant hy proc-eedingn in y J «v,rra„/o ,7 imply 
eying upon a want of capacity which had ceated to TxU^ 
«heii proceedings were first had- /j«^„ « 

1913, 21 R. de J. 73! ^''*'*^'^ ''• B'^'"-'9<'rd, 

Sate-Agenn^Promm to Pay ~ Evidence - Pleading. 

tiff^'J" »n action for goods sold and delivered by plain- 
t.ff. personally .n part, and by its agent for the baK 
and enfrely delivered by pl.intiff to defendan plaS 
will after proof of sale and deliver,-, be permitted to pro 
uce correspondence tending to expkin wCp ^,ent had 
n been made of part, at least, of plaintiff's account accord 
J to pronnse, notwithstanding absence of an a 1^^ 

eudence of the conversation referred to in the letter will ij 

». tt^L^lT. "^ ^''^ "r»"t ^^^ work and labour done 
..d for interest on past due accounts, will not be allowed 

Tw^:r "'/"'•^«t-- -vering the items 
J. Written evidence (invoices, receipts, bills of lading 
ques) relating to previous sales and'delivery o mI 
roods, between the same parties, by the intermediarv orthe 

r^r he'^ ?'tf ^'^ '' ^^^"' *""* defendanlTas deal 
^e„t:':ssll''""''"^''^P""^'P"''-^-t with the 

^ I B''a.!,^'^1'"'^'"' ''",'^ "'* '^"'^«" «^ ^he agency of 

3 to '^'"f ^'''''"^ ''''^" established, plaintiff had 
right to sue m its own name: Imperi<il Wire d- Cable 
0. V. Dorchester Electric Co., 1913. 2 R de J 88 



^ >^PPLIED IM/1GE Inc 

^^ 1653 Eust Moin StrMt 

B%S Rochester. New York 14609 USA 

^S (716) 4»2 - 0300 -Phone 

^S (''6) 288 - 5989 - Fax 


[VOL. 34 


as Police Officers ^n f *^^ f^ , ^^\ Peace^EngU.h 

the control of the Pf 1 \Ja. 'i .^ ^^^.^ ^^^^^.^^^ ^.,^ 
subject to the control of the civu ^^^^^^ 

the other individual -^'"Jl^'^j/^X provisions of article, 
such corporations J'^^ -"^^^f ^^^^^ ' Theiv civil liability i. 
1053 and 1054 of the Civil Code in ^^^ 

also asserted in several provisions ^ M P^^^, ^^^ 
and in the general causes of the ^ - ^^^^^^^ ,, their 

'• Xt • -not necessary ^- ^^^:^^' ^^^ ^ 

pablic law to determine «^« "^^^^^^^^^^ J,v, liability hav- 

• tSa;:^:n=-a=Jr.thepnhlicla.of 

rfance, Ihich is that of this l^vince. ^^ ^^^ 

I. certain respect. ^^^^ ^^^ ,,, ,,ouia 

officers appointed bj "y^n^^/P ^!' ^nd municipal cor- 
be considered as agents o the ^^«^"' ^ ^ Nevertheless, 
porations incur no l-^^^l^^ J^f ^^ iXvince the absolute 
Lre is no reason for ^PP^y^^^ " ?' „f ^^^ieipal corpora- 
^le of the utter lack o ^^ "r' ' the cTown or ^tate are 
tions, in so far as such ««; - f Jf ,^ ^he United States. 
concerned, as prevails in Englam an .^ ^^^^^^^^^^ 

Municipal corporations ^-J^l^l Zk\e held answer- 
for the acts of their P«^^^^^ ^^"f^f '.ffieers a^ted beyond the 
able, unless it be ^lewn tj- f- ^^^^ ,„,i,, fo, which 
bounds of their ordinary duties, beyonci ^^^ .^ ^,^ ,,. 





An exarainatioii of tlie new i les of the Courts of 
Ontario, by a Pennsylvania lawyer, must suggest many com- 
parisons witl. the system of practice with which we arc 
most familiar. To the man of impulsive temperament, if 
such there be at our Bar, would come the temptation to see 
in the excellencies of these rules merely an opportunity to 
hastily condemn the r.-.les of our own Courts. The rigid 
conservative at our Bar, if such there be, would wave these 
Ontario rules aside with solemn words and dignified gesture. 
Between those who hastily seize upon and those who sturdily 
reject, everything new, there is a large class accessible to 
new ideas and gifted with sufficient knowledge and under- 
standing to appraise their essential value and practical ap- 
plicability. I take it for granted that the members of the 
Law Association belong to this class, who in all things seek 
the middle way, the way of safety, true to the best traditions 
of our Ear and ever anxious for continuous improvement in 
cur methods of procedure, so that in the struggle for rights 
between men, it may be more and more certain that right 
will prevail. Under the influence of some such thoughts as 
these, I looked through the volume of the Consolidated Rules 
of Practice of Ontario or to give their full title: "The 
Rules of Practice and Procedure of the Supreme Court of 
Ontoria (in Civil Matters) prepared by the Honorable Mr. 
Justice Middleton, under instructions from the Honorable 
til J Attorney-General. Approved by his Honor, the LieuiMi- 
arit-Governor in Council, under the Judicature Act, Section 
103, to go into effect on the first day of Septcml)er, 1913." 
The Judicature Act of 1913,i under which these rules 
were adopted is the last word in Ontario on the subject of 
constitution and organization of the Courts and of the prin- 
ciples which govern their practice and procedure. It is a 
lineal descendant of the Judicature Act of 1881, which, iji 
turn was an offspring of the famous English Judicature Act 

in ,*ri^2 address before I^w Assoclatiou of Philadelphia, December 
'See the Act of 3 George V, cap. 19. 





[VOL. 34 

of 1873 •— a notable and distinguished pedigree. So ex- 
cellent has been the working of these Judicature Acts and 
the Rules of Court promulgated under them, that our own 
Judges in their last revision of o ir local Rules of Court 
have paid them the compliment of adopting a number of 
their provisions. 

Examination of the Ontario Judicature Act shews that 
it is largely concerned with laying down broad principles, 
while leaving methods of procedure entirely to the Courts. 
This is a principle of differentiation of function between 
legislature and Courts for which many of the best men at 
the Pennsylvania Bar have pleaded for many years, and which 
has often found expression in the reports and debates of 
the Pennsylvania Bar Association. The attempt to lay 
. down rules of Court in acts of Legislature has justified 
the criticism that thev hamper rather than promote tho 
efficiency of our procedure. A Court which makes its rules 
may reserve to itself the right to modify them, so ha 
through their too strict interpretation they may not lead 
to injustice. Where the nile is laid down by the legislature, 
the sound discretion of the Courts cannot be exercised a 
all and the rule of procedure attains the same dignity ami 
inviolability as a rule of substantive law. The Ontano 
Court ir proceeding to formulate and promulgate its rules 
finds itself unhampered by legislative interference and i« 
allowed free play for iiz wisdom to determine how the busi- 
ness of litigation can best be done, so that, to use the words 
of Bule 183: " \ proceeding shall not be defeated by any 
formal objection, but all necessary amendments shall be made 
upon proper terms as to costs and otherwise, to secure the 
advancement of justice, the determining of the real mattoi 
in dispute, and the giving of judgment according to tho 
verv right and justice of the case." 

We in Pennsylvania, have enjoyed the benefit of the 
Amendment Act of 1806, and supplementary Acts w hu h 
coupled with the common law powers of oiir Courts, luue 
enabled them to follow the same principles which are so we, 
expressed in this Ontario Eule of Court. It were wel f 
iZ powers of our Courts were still further enlarged in t » 
resnect bv the abolition of all legislative rules, so that po 
dure m'ght be regulated entirely by the tribunals be I ore 
;S I! .ausos L. litigate- The danger that once 
existed at common law whereby rules of practice through 


long use became inflexible im d not l.i- feared Of .. 
we are occasionally ren.indej of our i p V e tns vherS 

latt of nature, but generally a rea- , ,ble discretion i. J J 
eised by our Courts in their efforts to do^^iee T ^e It ' 
mate power to correct an abuse would lie'in he le^ ature 

oked"i ' ZS 'T"'' r '^ ^■"^'■-' o'-tinac^-t i" 
Xotwi"t>, . V " *"""'' ''""■'^■^'•' *'"« '« "ot to be feared 
Counts I'r^ r^' P"^"'«^ "'^"y *" ^J'« contrarraur 

"1 iis raaicai and conservative forces T w«„u 

i.w: ..d the »Mbi...°::;rr'trr„,d'sri:i 

No doubt the interference of loeisl,!,,™. ^.n, .1 
developMent of common ,a„. anTp'S J t ""T" 

- =;: rj:ej"rtt^- f ^ " - --- 


older tnethod of a" ow ngtYeZ ^t TT 1 ""'"' °' '"" 

idea, of right th.ronr Courb ™f /^I"-™ to public 
■-' Jud,e, and att„™e,,.at7.t J^ol^^^^ZZ^, 

1-' d 




n . 

* , 

|1 ... 

4! i 




[VOL. 3i 

impressed by the influence of the spirit of the time. Occa- 
sionally an illustration may be cited to the contrary such 
for example, as the decision of the Supreme Court of the 
United States in Slocum v. The Insurance Company,^ whuli 
unquestionably marks a step backward, as pointed out so bril- 
liantly by Mr. Justice Hughes in his dissenting opinion. 
This case merely illustrates that Courts are not perfect, 
but it by no means proves that they are lesa perfect than 
the legislatures. Granting all that may be said against 
such occasional illustrations of judicial insensibility t. .on- 
temporary needs cr tendencies, it remains true that Judges 
express the ideas of right and expedience dominant in their 
day, modified, however, by the whole body of law and 
practice tiiat has been handed down by tradition. For tho 
individual in the pursuit of his own affairs radicalism, moder- 
nity and self-expression ma> be permitted almost indefin- 
itely; for a community of millions of people, social life must 
perforce be regulated largely by the rules made by the dead 
and not by the living. 

The fundamental characteristic in the organization of thi' 
Courts of Ontario is the single Court, a Supreme Court 
consisting of two divisions, the Appellate Division and the 
High Court Division. The latter is +he trial Court for all 


"Every Judge appointed to the Appellate Division or 
to the High Court Division shall be a Judge of the Supremo 
Court and shall be ex officio a Judge of the division of whicn 
he is not a member, and, except where it is otherwise ex- 
pressly provided, all Judges of the Supreme Court sha 1 liav,- 
in all respects equal jurisdiction, power and authority. 

Any Judge of the Supreme Court and ^.uy retired Ju(l?o 
of that Court may sit and act as a Judge of either of the 
Divisions of the Supreme Court or perform any official or 
ministerial act for or on behalf of any Judge absent for ill- 
ness or nny other cause, or in place of any other Judge whose 
office has l)€Come vacant, or as an additional Judge of a 
Divisional Court.* 

A distinction is maintained between the Judges of the 
Appellate Division and of the High Court Division, but it is 

»«>9« TT 8 364 (ilOlSi. For a criticism of this wise, see <'l 
Unive^tyofPe^fvlvanta Law Review, 073. October im3.-Fd.for. 
•Judicature Act S^. 
♦See, ibid. §14. 

itAAS\j.\.lM.\ I'i.OCEULllE. 277 

V ded that in addifmn t 1 , f '^ furthermore pro- 

»ion shall „„„,!,, i,,' .elLw i^ ° 1° "'''', ^T^ ""'■ 

of Canada o ' of th s OntarioT'f ""',' "' '''' ^^"'"'''^'"^"^ 
question, thesan'eXll not .^ ?'''"'■'' '"^ •^'""^^''^ '" 
after notice haT bl I .1 T '^i"''^/'^ *" ^^ ^"^^^^'^ ""til 
Canada and e 1^4;.! ">«/«o™eny-GeneraI fo. 
be enftled, as of r Itt ./ f ^"'"""'" ^^^« "«''«*" 
counsel, n^twltl^^'^^th^t YhTVto ^ " ^^r ^^ '^ 
to the action or proceeding"" '' "'^ " P*'*^ 

force m the Supreme Court ofth^ UnS States "" '" 

Ilie Lieutenant-Governor in Council «l,flli / 
annual Assembly the Jud^p, nt )h V " ''""''^"^ '» 

the purpose of Lsidennf h^ the Supreme Court "for 

ture) Act and of the Kulef of CoC f.^""'' ^''"''^^- 
the offices nnrl fi.„ ^ Court), and the working of 

office^ : he C urtTnfT'^ "''"" *^ ^^^ ^""^ o^' ^e 
any defects which Lay aplaTir^ examining into 

P-ocedure or the adm^niS . '''''* '" *^' ^-^'^tem of 
p X . aaministrdtion of iusticp in th^ a 

Court or in any other Court «r k, 1 Supreme 

and this council Lll !' ^^ ''"^ ^^^^'^ authority."" 

the Act and an pro Lior^ T'"''"^"*^^ ''^ ^^*-^««-" to 
-thout legisU;ra^S^:i^''t:T t '^ "^"^' '"^^ ^^-t 
ti-e administration TjusJiW '"'''^" ^' ''"P^''^'^"^ 

appeals; thatll,; htf Taw 'ffi ^'"' ' *.' ^'"^* '^' *« hear 

' Spe, ibid. 883S q«, 
; Ibid. §33. • '^•'• 

' See note 2 ii/pro. 
' 'bid. 1113. " "• 


-!r !l 




1 VOL. 34 

:rtl°r,"'i o" S -!> reco.™nda..n. a. ., 
their judgment are advisable. 

Kron, iwne to time ™- "->;'„■, ^It: Ut it ha. 
vania in favor of «""' °''°t e4i.l they are applieablo 

„e„r >4l-;\tn it a^WMJ for inc^iry, 
to our State. There is nere a . j g^^ Association. 

-' V^ recent,, the^. n^^^^^^^^^^ ^^J^,-, 
these principles to the ^^^^^fJ^fZ^ of June llth. 
ing its Courts of Common ^'^^^'^^/^'J' to join the 

ory of a long^clesired^os.^.^^^^^^ But^;;^y ^^^^ ^„ ^,, 

the early ^^^l^^^^^^V ifto wrform all that was expected 
brother survives fully ^^^e ^ P^ J^^^eh 9, 1885,» provido> 
of this mourned one. The Act^ot aia , , 

that, " in all --ties in which there ai.t^^^^^^^ ™ore^ ^^^^^^^ ^^ 
Common Pleas, the Judges of anj ofj^he «a ^^^^^ 

the request of any ^«^^f ,«„J^^^^^^^ any jud: 

of the same -\"\^;^^ J^^^/^Xthe sar^ effect as if tbev 
cial duty »°^«"<^^^,«;^;;^^ that nothing in this a.t 

were members ^he^f 'J^^j^fJ^age so called upon to ad 

shall ^;-:xz:'tl.co4^-^-iio- *^-^-" 

for another, ^ " J^^^ „f ^he eonstitutionolity of tbi^ 
There can he little douDi oi xik i 887," wa^ 

Act, especially since the Act "^^ «;%,'„*;^ J sLe tho 
held constitutional in C.m.o««.^^ ^.^etween vears a.l 
,et of 1885 has been on t^e ^oo^ 'Philadelphia " Rules of 
has been enforced m P^^^^ JJh ^ c„^„. 

Court, and practice. It ^^^^ \j ^^j^v of such an act 
would in considering the,^°^f;*"*i^r has br ,a on the 
take into consideration the fact that it nas u 
sJatute books for a long time unimpeached. 

•P. L. 5, SI. 

» 'Vrlt.- 3 Mr'Taitio. PO...V >» O-W"" '' <"""■""■ 
234 Pa. 3hl (1912). 

IJ'HJ ^un.iumrs os i.kvnsvi.v.vvu vhockuvuk. 


Under tlio Act of 1885 the Judir 

by rule of Court, for ull 

?es of I'hiludflphiu could 

. i. practical purposes, while retainini? 

one crrHnd tT^ "' t "" .''""^'^' ''"^'^-""^'^' ^''- i"' 
funct ?In f , ''';°^"'' *•'' '•^^"'t airued at by the de- 

oal ?S ,:.^'"" ''^^ '.^"- ^'- «" at Phildelpll 
roaii.v think the <on>.,li,lat.on of the Courts desirable? 
11 en let ,t pet.tion the ("ourts to act under t ie t ,f 
188o. .No one doubts that if the Bar is substantially unani 
mous ,n ,t. request the Bench wii, with characSl g^^^^^^^^^ 
J.eld to tn,s demand and grant the relief prayed for ^ 

lows that \Z' '-"^r ^*''"'* '"'• ^"^«^- >t ""turallv fol- 
lows that there .s but one sot of Ruh-s of Court. Here 

again, is a subject that has been agitated in PennsvivanTa 

for many years. I recall the labour of love performed bv 

Alexander Simpson, Esq.. of this Bar, when in S96 he 

prepared a comparative study of all the rules of Court ot 

convention (the first and I believe the last) of the Judges 
of Pennsylvania, held i:i December of the same year the 

eler ; om f ""^ Z" **^1 '""'^^ ^' P-edureC di ! 
lussed. From time to time the matter has come ud aeain 

at meetings of the Pennsylvania Bar Association, bu? not, 
IZr' '''° ''''' '' ^^« ^'^^-^i- that oHginally 

for \t^^ '° ^'"'^* *^* •* ^""^'^ b« P°««ible and practicable 
for the Supreme and Superior Court Judges in councl «1 
sembled, to promulgate rules of Court for 'a the Cou ts' 
of Pennsylvania wherein allowance would be made fo 
he special needs of different localities, due to rfference 

oTS :K::1 ^^ T^ o^P Ju^^^^in^^Hrcot-^t! n^ 
omse'ves Th k, ''' '^''" ^^° ^' ^est regulated by 

n Z P . problems are all well known and the ap- 

pelate Courts represent all sect^ n.. of the State 

tric;l^s!miLTtl!''.r'''^i' *" ^''''^' *'•« state into dis- 
Ji on iT dkided V r' ^'''''''' '"*•' ^^'^h federal juris- 
Comrnr, PI ' ^'^ ^^ organized as District Courts of 

Common Pleas, composed of all the Judges in the district 
and being branches one, two and three^f the Court of 
C^ZrZ 1 ^-7^ ™-- A flexible svstem mlh 
'i^nsed whereby Judges may be transferred from one 


iK i 


I VOL. 31 

district to the other, as i. now sometime, the practice unde. 
.everal acts of Assemhly. and whereby a judical eomm. tee 
of ch district, together with the Judges of the Appellate 
cLrtB .nay constitute a judicial councd performing the 
fine ion. of the Ontari. Judicial Council « «^^ovo ou ; 
lined and making the Rules of Court and annuall, n- 
exatninj ti>em. Nvhether such a plan i« "i--';';;; f- 
ticahle or even worthy of consideration. I leave to m\ 
b r n >f the Bar to ho considered by them either in 
th ndividual or collective capacity. There is much more 
o be learned on the pracUcal asp.ct of ^^-^^l'^^^'^^ 
study of the judicial systems in i»mdict.ons other tno„ 
ownf and I have -.'enturcd merely to surges topic a. a 
result of my reading of the Ontario Rules of Court. 

How is the B.nch of Ontario recruited? I am indebted 
to urionourable Mr. Justice Riddell of the Supreme 
Court of Ontario for the following information." Ihe 
Ster of Justice, especially if he is not a member of he 
B^n^he particular province for an ^po-ntmenn^^ 
to be made, coilsults privately such rf the Bar as he ree. 

would be deemed worthy of it. Ihc mx >" , 

capacity does i..>. express any opinion; the I^gf '^^ure as 
noEg to lo with the selection, the Judges would not th 
of interfering with the choice or advising as to it. 1 
choke of the man is made by the Minister of Justio., a 1 
submitted by him to the cabinet. If the cabinet appro o - 
aford r in' ouncii r, passed; if the -''^^^^ f ^I'l;^"^",; 
SurtlL recommendat on is irade by the Minister of Just - 
unt the cabinet is satislled. The roc mmendation o t 
cabinet is made to the Crown and the appointment .s therc- 

"''ThTe'ls ..ardly any criticism of Judges or Courts ui 
0. I . The .pe^tacle furnished by the United States m 
which the Cou..t! of Justice are daily, I might say hourls 
h d up t critcism, ridicule, contempt and even vitupera- 
?^n exdtes unbounded surprise across our northern bor or 
The Fople of Canada are satisfied with their Judges a- .1 

usee 62 Vnivcr.itu of Pennsylvnrna Lau, Revieu>, 17 Novemhor 
1913, "TTie Courts of Ont&Tio."— Editor. 


their admiiiintrutioii of the law nml ,• .♦ *i . 

"oiinng to do with th. irTl 7' ^ '''^' '"*''^' "'»^"'"''-'iy 

■'...ISO. Wo „S T;,X; ";";;:", " ,""'',"" ',", '"- '"" 

Fa CO," " r(ecallh,rr n?\r ^'"P"*'^''" J""icial Ballot a 
t'ourts Into Politics " wiH h. „ ' ^«^e'*"0>' draffs 

"hich invito or at Lll '["Provernont over methods 

s/mll we do v' Sh„ , * ! P"'''''''' "' '' ^''^''^^f- What 

ti-n ballot? Sha"I w^tt'u™ f '^ r^''"'^^''^ ^" ' "°"P"- 

."'rrniratith: v^n-, ^-^'^ a"ai th^lS 

^v the GoyerZentlr^Zy^^ '' appointment 

adopt a .v.tomTke that o? ^T "*r "'' ^'^^^ ^hall wo 
the ohaef law^^ er o he S?rt;r V^PT''"^"* ^'"-""^h 
consent o^ tl,. cabin etpLf' '-/"^ ^'^^'^ ">« «dvice and 
in the J.wl, r ,L ^^'",r'''"P**^««y«tem in vogue 

Supremo Ttir^ n"Tf '""^^'"^^ *° ^^'^^ the 
the local .r„4r ''T'"*'^ <^™rnissioners who selected 

Courts of tw, re^d'TC «^'"^ '^' '^"'^^^ «^ higher 
-ore selected '?^r^ the Supreme Court or Sanhedrin 

to make our Sir 
"'P'lt of the Coi.i 
Appellate Courts 
tJiere is room for st 

^tem w'nc) might be adopted so as 
""rt rr^fx.nsible for the appoint- 
- Judges fron- among whom the 
^ recruited? 'vThatever th. plan 

1''^.^ and thoughTlesrer ic'i^m 1'/'"'''"" '"'''''^ '^ ^^' ^•"^■ 

Another fundan o^ " L of diZ'^'VT'^"- 
and Pennsylvania i. t 7 .^'^f ^^'^^ ''^'t^een Ontario 

th^ procedure r,a; „. "^ S' V^l ^^"^'t "'^^^^ «^ 
nc -ity ^^^ ha- - ,n Pennsylvania 
. „"See. Talnud Babli Sanh w ■ • 

^Ot. XXXIT. C.I,.T.— 10 


R;Ai II 






,..„g «ince enioy«l tl. benefit ^ jj^^ "^'-Hali^ul 
able principles iu ^^-^"T^ZX^l^^^^^-^ ^^ill n.o. 
t'-. «' ^«^" ^>'«^"":, ;Lt a " n,ui bc.l from practice ..- 
nizo chancery P'"^"'"^;"^^,; ,;^' ",*^avo to c^n^i-ler c,u. - 
procedure at law and "">; \»"'' « ^ \ ^„^i „itv sid. > 
li„„H of jurisdiction as ^^^^^^ ' '/^ '^ ^W Ivmd.l in Kn.- 

land H.nce 1873 ami '" "" , ^^^ ofit the expcrun 
possible for Tenn-lvan a to studj w tn p ^^, 

of these and otl jurisdict.ons and perbaF ^ 
salutary changes in its system. 

modcrniJalnin m m «'"" ' . , ,^ , the Courts U^■■ 
.„d, ., they are, arc d«. to ^ '^^ 47„„,„en' M » 1 
„„t yet been UD ette^ ^'^ i.'^^^'l .ere aboli*», U 

twS iJa -"I'X'r. :. the m»t e.c„.. 

system in modern times. , , ^^ j^ equitv. nro 

In Ontario all actions, whety f ^^^J^,, i,,,e 1. a 

commenced by a wnt of summo. .re plcacl^ .^ ^^^ ^^ 

statement «^^l^^-S«"^,^,f^7po;e; n the Court to allow 
.ary, plaintiffs reply; ^•^*^, f ^J^'^^' ^e^^med necessary- .nd 
anv and all amendments that "^T ^ "^ ^, ,.,,„, 

to-bring in by third-party Procedn^ any^^P^^^^ F^ _,^ ,^^ 

.bo may have any in^- ^^the-^^rs^^,, ^^ ^P ^^^, ^^ 
may be joined as _pl«i"tiffs n ^ ^^^^tion or n<.. ur- 

respect of ^\;;jf^:lt^:;ZL.ce. is alle.o,! to 
rence or series of t™"^»^3 • ^^^ alternative. «bere 

exist, whether i«'"tl^,f ^"*"\;' \" *7anv common quo. 
if such persons brought -/"« .f ^J/ J persons mnv be 
tion of law or fact would "^«^ ' *"* ^^^^^^ «elain,^ a.v 
joined as defendants ^K^^" ^^^ " U or in the alt.rna- 
iight to relief, -^f^^X'^%T^jZ or of 

the defendants, accoramg to their ^^^^'^^ ^^^5^^ to or.lor 
Court has power in the ^^^J^^^^^Jr more of t. 
-^^^^^rSoi the defendants, o. .a. 


any oth«r ^^dor that may U- .U*,,,. ! expecl.. nf .« It is not 

m al Id ff„....c.s between law and c^u.ty. contLt nd 

iin laci tnat the controvergv arisen nnf ,.* h,„ x 

;..,.i..n .nd t,,.. .„ „, .„e ^^1,:: 'a,,' .J ,7i X 
"hole or some nnit of it The ofT^f ^t «i ■ . 

;on. ™„ip,ici,; of .„:„., ill" :,Se°«, "i: v:/ri.c 

t-n ansm^ <,ut of a single transaction ^ 

this anrotw'""\'' T-'*'"" ^^' *''^" Bar of Ontario that 

^"iftly justly and certainly has encouraged litigation T 

ano, Appellate Division, for appeals entered for the session 
f one month commencing April 7, 1913. There are sStv 

of the dXnf fi . ' ^"^ '^^' "'^*^'" th^e months, nnrfi ^^''',f''^"""'"t «" «PP«al; thirteen within sLx 
ca s t ^9 n ff oWerca^es antedating this period. Of the 
aMs m 1913, five are less than a month old since iud^ment 
^..rty-one are less than two months old Th^ 3 ate 
Dn.sions of Ontario hear and dispose of about ei^hthun 
Jrc.l cases per annum, whereas thVaverage reco d of the 

t-lThun^r d '"'"'" '''-'' ^' Penn^imi 
2T r^.^ ""^^^ P^^ '^""'"- It will be seen therefore 
am Ontario with a population of about th^^ lioS 

SLl r"\''T "' '''''' '"''"«'^'' '" Pennsvlv nTa 
InrnZn . f''^''' "^ "'^"'>- tvv'ic." a,s many case 

m proportion to population as the appellate Coum of Penn 

"^«' Rales 98 and m. 

S«>P, Roles 58 gj,^ gg 

Sc«, Rule 75. 


.ah: - 




384 THE CANAmiX LAW T.M18. t"'" ^^ 

^„.ani.. This .houia aUay th. f«.r. o^jm*- oMhe 
?e„nsylvaola f-/^ T«S n T^ staple, the pro- 

Bar will be called upon *« f J^^/^f ^^^^^ time is that laid 
One of the ^^artlmg "method or sa ng ^^^ ^^ 

down in one of the Ontano Rule^, ( ) ^^ ^^^^.^„, f,,. 

hearings in the ^^^^^^^f jX ' ealed to shall have the 
a new trial, the Court o^ J* ^/-^^ ,f the Court, Judge 
powers as to a™f f "J^^ ""^^ f ^U discretionary power to 
or officer ap^aled f'^o^^'.^f"^ /^''ffia^vit oral examination 
receive further evidence ^^^^er bj-ffida-t o ^^ ^.^^^^^^ 
before the Court, or Judge appeakd to j^^^ ^^^.^^ 

(,) such ^-ther^ev^S n >occl^^^^^ after the date o. 
leave as to matters ^h^'^jj^ f,„^ ^hich the appeal is 

'r„da„t «y,- «.^ ^^^^':^,, „, elaim or d.- 
Where a plaintiff has mea a ^^ ^^^g^, 

fendant a statement of ^f-ce e tl^e P^^^^^^ thJ allegation 
examined by the other pr^r to tje ^a P ^^^^ ^^ ^^^ 
in their respective pleadings. I am ^^^^ ^^.^^, 

Justice Bidden that ^f«"g^.'^\J"e disposition of at least 
universal satisfaction, ^ /^^^^^ftrial^y reason of the 
one-third of all litigation without ^nal by ^^ ^^^^ ^^^^^^ 

disclosure that parties are obi ged o make .^ 

of their case. The prmciple ^aU ^rns t p^^^ ^^^^^^^^^ ^^^ 
is that no litigant shall be F^™ ttett ^^ ^ ^^^^^ 

anything except _ the -^^ ^^f def nee which, if true, 
.wears to facts m an affidavit <>fcl .^ ^^^^^^, 

Siit. ,i^r ltt.«r a„a ... eUc. «,. 

"Src. Rule S,'^. 



It ' ■■ 

fact that the defence is merely colorable aud that the proofs 
at tlie trial would fall short of the defence set forth in the 
pleading. Upon the statement of defence and the cross- 
examination the matter may then be brought before the 
, Court by a proceeding similar to our rule for judgment for 
want of a sufficient affidavit of defence, and the Court in 
granting or refusing judgment will consider the sufficiency 
of the statement of defence in the light of the cross-examina- 
tion of the defendant and give judgment accordingly. The 
same rule applies to a cross-examination of the plaintiff 
upon his statement of claim.^" 

In Kibbe v. McKinletj,^' the late President Judge Fin- 
letter decided that it is not unreasonable to require claimant 
in interpleader to submit to examination upon his affidavit 
of claim, for if the claim is a just one the preliminary ex- 
amination will establish it and no one should -be allowed to 
profit by an unjust claim. There is, therefore, nothing in 
the objection that he is compelled to disclose his evidence 
of ownership. If this is a sound and good rule of practice 
under the Interpleader Act, why should it not be extended 
to all pleadings in all actions? 

A series of Bules looking to a similar result are those 
relating to the production of documents." With us, docu- 
ments may be ordered to be produced at the trial, or a 
notice to produce at the trial may be given, but such pro- 
duction cannot be enforced before the trial unless the issue 
is forgery or unless the pleadings cannot be prepared with- 
out such inspection, or, generally speaking, unless the party 
calling for the documents has a common interest in them 
with the party in whose possession they are. In Ontario 
the rule''' is that, " each party after the defence is delivered, 
or an issue has been filed, may by notice require the other 
within ten days to make discovery on oath of the documents 
which are or have been in his possession or power relating to 
any matter in question in the action; and produce and 
deposit the same with the proper officer for the usual 

Documents in possession of persons not parties to the 
action may be compelled to be produced for inspection." 

"See, Rule .327, etc. 

»20 Phila. Rep. 232 (Pa. 1880), 

"See. Rules 348, etc. 

"See. Rule 348. 

"See, Rule K50. 

U' fl 


■ '4^1 

^^Bi ^f^n 

' V 


\ ■ 




it ". 







28J THE OiHADIAN 1AWTIME8. ['»'-'* 

„ the righ. to di^overy 'l^'^f^:X'oT'^^^^ 

?-r tr™tri '^ \ ?- -- -'*'- 

J«, the Tight diwvery or •■»!«*»- j„ai,.t„„ 

A „.a with referent ^W^^^^^^ „,„,„., 

;ye:t ^;r rhr«"i- « -- -- - 

*"''^'" . fn. iniuries bv reason of the default 

Actions for damages for .^^^^"^'JJ . ^^ ^pair a high- 

of a municipal corporat.o-n not keep-g m J^ ^ .^^ ^, 

way or bridge sha^l ^e tried by a g otherwise 

Subject to the Rules of C^^^^^^^^VS a" i««^^^ «* ^'^' 
expressly provided by the J^^^^^^^/^^'^id by the Judge 
shaU be tried and -^l.^^J^.f^^'^tThe JudgJmay direct 
without the intervention of a jury, but i b ^^^^ 

a jury trial." H a V^^^g tri , 
be^ven, but notwithstanding «^^^, "°^f .;^"« jf shall be 
ing^at the trial may dispense ^jt^^^thTy may render a 
sufficient if ten of the ^-^'^l^Z^LellV^^rrniie^ to 
verdict, and ^^ , --^^.t^ai^'^Lt the same ten juror. 
the jury it «hall not ^^^f^^^^, ^ ^^.or dies or becomes 
shall agree to ^^e^ answer^ acting, the Judge may dis- 
otherwise ^^'^V'^'f'\,^T^^e\!yen jurors, ten of whom 
charge the juror ^Vr^^'^^-^^H q Jtions submitted to 
„,ay give the verdict «\*°^^^' ' -^^ ^ general verdict it 
the juiy." The jury shall not g ve a g ^^^^^ ^.^^ ^ 

directed by the Court ^^^ ^^ }^^^l. Except in an action 
special verdict if the Court «« dir«J^^ P ^^^^^^ ^^„, 

Tr libel" the {-'II^^^\^:%'^J^Za the jury shall 
questions or facts put to them y ^^.^^ ,^ 

answer the questions and not give any 

-See, Rule 352. 
"S^e, 5^. 
"See, 1^. 
"See, JRfi- 
"See, 8f«- 

"-See, |61. 



The Court may obtain the assistance of merchants en- 
gineers, accountants, actuaries, or scientific persons, in such 
way as it thinks fit, to enable it to determine any matter of 
fact in question in any cause or proceeding, and may act on 
the certificate of such persons."^^ 

It may be difficult to realize that these provisions of 
the Judicature Act and the Bules of Court of Ontario have 
been promulgated in a country which adopted the common 
law and procedure of England in 1792, and has since then 
flourished under that system. In England, the jury system 
performed an inestimable service in the development of the 
Jlnglish constitution and the maintenance of the liberties 
of the people. The English colonic'- children of the mother 
country, inherited this system. In the course of time Eng- 
land and her colonies realized wliat even Blackstone," 
despite his eulogy of the jury foresaw, that this institution, 
notwithstanding its antiquity, respectability and honorable 
achievement, no longer satisfied the demands of justice, and 
accordingly they proceeded to modify it and now we have the 
interesting spectacle of an English country practically aboli- 
shing trial by juiy and substituting trial by the Court ex- 
cept in certain classes of tortP. The American states were 
also children of the mother country, but nearly a century 
and a half ago they repudiated her parental control, and estab- 
ished themselves as free and independent states. What they 
took from England before that time they have clung to with 
much tenacity, and although they realize the imperfections 
of the jury system they seem to find it difficult to attack 
the problem with anything like the boldness shewn by Eng- 
land and her colonies, because of the bar of the state and 
federal constitutions. It will probably require the experi- 
ence of many, many more years before the Seventh Amend- 
ment to our Federal Constitution will be changed In the 
meantime It seems to be the policy of the more progressive 
states to imit the right of trial by jury by requirements that 
jury trial must be asked for, that jury fees must be de- 
posited and by encouraging the bar to agree to accustom the 
people to trial by the Court without jury by agreement of 
the parties. That the jury in civil oases is an anachronism 
and an absurdity has been frequently asserted, especially by 
those whose experience in Courts of equity. Courts of bank- 

"Rnle 9«8. 

"See, 3 Bla. fomm. 383. 


[VOL. 34 


th.t the Mues m ■=';■' '»^'',^ ,h<«en at large. 1.. 

i^ y 'Tf cS- crin »E virtually a jur, of ex- 

pe«. U -»"* »*f ;J; „„i,, „, thla addre. to point 
It is impossible witlim tnc im pvocedure in 

o.t .11 »' tVo''°S« 1 -X^d in the further 
force in On ario. Tho^ «h» ' „„tv,ithstanding its man, 

rrd7r«ng' eTc^lSr^u'ao wen to .tudy the system 
in this neighboring province. 

We have passed the age ^^^SZT^^"^^^ »' 
scious, when we go on !*» «« ^ ^^f j^^el us from 

mature -^^^^l^'^Xr^^^ - ^"f T' *"■ 
withor"-. In tne neiu ui j r real ze the pos- 

consciouB and «-- ^^^^^^ ^.^g T^P-vement as U.e 
sibility within certain limits of makmg i P ^^ ^^^^ 

x^sult of deliberate experirnent. This is thej 
scientist, the method ^y^^^^'^l^^^^ 'eache^ra result of 

is virtually a method io'-J"« ^Uewhere in order that from 
the data of experience here and e^^^^^^^ ^^^.^ 

them principles may be /^«<^^^^'^^ , j^ is a system ot 

formulated in the ^^^^^^ZZT^ hlre^fore! to tli 
legal education not limited however, ^,_ 

edlcation of ^Pf-f „ :-^lSng S'our". yste™. *« 
education of the Bar itseii. a e ^ 

Bar neglects its ^Jude^^ ^ ^ ^ eSlisran equivalent 

to the system of post graaua.^ „„-;„hpd and enlightened 
„.inds of its own members "^^7 ^y°™ Vinciples and 
,y the eon^nual ^tudy - ^^^^J,^ i^„,ediate 
practice of the law in their own j ^^^ ^^_ 

practical results in litagation ^J^J f J^f J ,,der that 
^jienoes of other places and other nations, m 

" Under Rale 268. 


excel ent lawyers an,1 T,,,!,. u . J ^'^^ "® "^a^y 

of law. The p"Zrif tL ',"" ■",' ""« '» a» »*o«l. 
There ir7grea iX" '"^" '° '"''"'' '" ''"''"'*• 

representatives of the Lpi" yi" ,, "" ''°"*'"'"' 

such laws I S Ih ! "^"'P* *^ *PP'y ^"'^ administer 

reqni^s not only special skTll in ^-fl „^ w !' ^ ''''""'' 
Bar nTT/1 ,-^+ ^ V^ , ^^'" '° 1*8 administrat on bv thp 
«ar and interpretation by the Bf^r^oh Ki,+ j i. ■'^ , 

ri^r if " "" -'*» - ""--i"/." ,s:to:!] 

to them W thf 5 , P"'»™anee of duties assigned 

ordinal d^li' ™T""1, ''^"**°''' """i"" "' «.eir 

.lection^ est.t:'bffl,\;;,^::rr'^ f" ''"'™*' 

' ^^s^arions to govern the practice of 

"See, R. s. O. 1897. 





[VOL. 34 

o ^ «ti. The practice is to refer all 
the Surrogate Courts etc ^^^^^^ ,„ their justice 
Estate Acts" to two Judges for a^ op ^.^^^ 

and expediency. ^ 1Xi^-"g-^^^^ - Council, 
the government that ^^'/J^/J; -^ „ consideration "any 
may refer to the Court ^ ^^ J^*"°^f ^^ „ f^r an opinion as 
n^alter which he thinks F^P^/ ^^^^ ^ ^he constitutional 
in an ordinary action. « ^^^^^J^^,, ,, a proposed Act, 
validity of an Act of the i^^»'*' . •„ ^j, actual case, 
either before or after the ^^'';^^^Ze\oWc. and a 
the Attorney-General of Canada xnus^ ha e^^ .^^^^^^ 

right to be heard, and t^\^^°"?,T;ard or request some 
to'be notified with the right t^^ he^rd o eq^ ^^ ^^^ 

counsel to represent^ n^et t aPPeai as in an ordinary 
Court is a judgment subject to appeal 

n^ow much chaff could be elj^n^^t^^/;- ^ ^e^^^^^ 

bovver before ^eing^--^/^, J rd^utional amend- 
nractioe were in lorce nere u 

Lnt to Article V ^^^^^^ ^"^^"^^^^^^^ legislative system 
Much might be said m J^T^^^ J ^^.^f n,ight be said 
differing entirely from our o^^'J^^ "^ ^^ ^^^d to the 
for a system ^'^lf^^:J\,^:^Uises!!T^e people, 
present system of ,^^f *"^®° '^L-tive system is not to be 
On the other hand the f P^ ^^^^^^^"^ it will be con- 
despised. Whoever our l^P^^^^f ™J ^,',1, of making a 
ceded that participation in t^^^^/^^*' 7 preparation, ' r 
people's law should r^-^^^^^^ ^prudence" are .1 
L words of t^ Jewish M^^r \f "lun P ^^ ^^ ^^^^ ^^^ 

true to-day, " P^P»^%*S" A most encouraging sign 
knowledge of it is not mhente^. Am ^^ ^^^^ 

of the times is the tendency tojly ^^^^ ^^^ ^on- 

willingnees of the ^1*^^?, ^^T^^^Vg^ by the expression of 
stitutional right to "^^^^^^jf-X We shall no doubt 
his views and t^- «-- ^^^Xod that the untrained 
reach the day when it ^"i ^J unoccupied politician, are 
citizen assisted ^7 ^^^^^^en^for ^ the will of 

not divinely i°«P^'^^/°'^"'„C^arwell as law administra- 

trammg md^e. for efflctency. 




Cession and Nationality. 

thJ^^^ Po'-te has experienced considerable difficulty during 
the cou.Be of the peace negotiations with Bulgaria and 
Wreece m settling questions of nationality regarding the 
population of the transferred regions. Such difficultifs are 

to ir? .r^'"- ^° ''^'''° ^'''^' '* ^«« the territory alone 
to which the conqueror looked. By virtue of his new terri- 
torial sovereignty he l.ecame entitled to the submission of 

IZIJf'Z ''*"^'i^ ^"^'"^ *^^* *""tory, and that was 
enough for h.m. The tendency in quite recent years to lay 
additional stress on the personal tie between State and 
suoject, and to as., , t limitations on the autonomy of the 

oZ^J^^A 'r''i!^° T''"'^ *^'^ ^"^j«^*« «* «ther States are 
concerned, has brought about an entirely new situation. 
The conqueror now no longer thinks of soil but of souls. 
T .e cession is not a cession of territory only but a cession 
of subjects. The first glimmerings of the new state of affair" 
appeared when cess.ous were made dependent on plebiscites 

11 rl lt"'^V.- '^^'" *^" ^*^*"« «f the population 
began to be the subject of special provisions. As in th. 
case of the cession of Heligoland, an option to retain their 
former nationality was conceded to them. And now the 
posifon of the inhabitants is, perhaps invariably, made the 
subject of special regulations. On the occasion of the 
recogni ion of Servia as an independent kingdom, the 
nationality of the Ottoman inhabitants was the subject of 
very vague provisions, which gave rise to an acute con- 
troversy, dealt with in an able fashion by Prof. Peritch, 
of Belgrade m "A Case of Change of Nationality without 
Cession of Territory.- In fact, the provisions of treaties 
cannot be too explicit on this head. "Inhabitants" is an 
ambiguous word, and cannot safely be employed to 
(iesignate the transferred population. Transitory allegiance 
!s transferred over many commorants who do not « inhabit » 
he district: not a few "inhabitants" owe permanent al- 
le^ance to other States altogether. It is said that Greece 
and Bulgaria are pressing the view that Ottoman natives 
of the ceded districts ought to be transferred, equallv with 
residents; it ia difficult to see why this should not be ad- 

i t. 



[VOL. 84 


.ittea, if once we to cede V^l^^^^^^ ^, 
in the parcels of conveyance. If .as is a ^^^^ 

thcBc non-resident -f -«« ? tWe ^U wil be practically 
Ottoman-or ^Ikan "^^'""f ,\y' ^^^ t Jy ^iU naturally 
identical-for being of B'f ^^ "^^^ Ser wa •, Turkey 
choose to become Greeks or Bulg^ • / -^^ .^ ^„ 

loses niany subjects actuaUirnabtm a^^^^^ ^^^^ ^^^^ 

restricted ^^f ^'7, 'j^to the force of the modern 
ridiculous. It 18 a tribute ^o tn ^^ ^^^ 

revival of the personal tie of nationality 
Bfiems so. 


rt r J«ne. 1916 

Our London Letter. 

The Kmplr. War-tested. What irfterr 

Options to Purchase Lar.d. • 

nndlnga of Fact. 

_. ^ By W. E. Raney. K.C. 

. The Law Administered by Prize Courts. 
By W. E. Wilkinson. 

Concerning Statutory InterpreUUon 

By JoJ^Kln,. K.C.. Ute Lectui^r at Osgood. 

our London Letter. ^"«»'»t' ^^^ 
The Society of Comparative Legislation. 

By Sir Courtenay Hbert K r R vna. 
Another D„.l ,„ upper Canada. ^ ^ ' ''•°-^' 

HI. Honour Judge W. B. Wallace Sal,- 

our London Letter. ^'^'^^'' ^^^^ 

Criminal Responsibility under Sec 241 nf tn n. 

(Duty Of those In charge oi f hVnl«* ^''""*°*' ^"^ 
n» A T «5,... ''C'Pless person). 

dtiwa"^""^™^' ^«^'t»e°t Of Justice. 
'"' '"r^'cr'""^ ^« Bonansacreek Gold Mining Com- 

Th« P. V, ^' "^^ ®- *'*"*. K.C., Ottawa. 

The Rights of Merchant Vesaels. 




a,..iu. 8~;'«"'- o.,j «,„,„ c 

*-'"t:i'^; .«-»-«. -.--■«'"■ 

November. 19i6 

company Law. ^^^ Honourable H. A. Rob.on. of Winni- 

peg. Manitoba, 
war crimes and W.r CHmln^.^^ ^ ^ ^^„„, „„„ SecreUry 

GrotluB Society. 
December, 1916 

Oa. I ."J"" ^"•»- ,. . ,. „f th. Commercial Lhwh ..f tl.e 

Empire. ^^ ^, ghannou, K.C Legwwu 

' foi Saskatchewan. 

*w K Wallace. Halifa"- 
Certiorari. jjj. Honour Judge W. B. Waliac 

N.S. ^ 

TheCaaeoflhe^m"^ p^„f,^or Edwin Maxey, University o 


ntniiis the following .'tnnm..-' 
-r„r CANALiAN LA^v TIMES confuns 
f..aturc8.viz.:- ^ , „„, ,-a,„uU.u> Docs.--, 

Current Commentary upon i^kk 
contemporary Reviews and I>cno.l..als. 
New Books and New Ed»t.ons. 

The Gaacttes. j ■,,,^^ interest to tl>. 

Local and personal items of ne.s 
legal profession. «r,t of these a really oonmenn'ms 

It is endeavoured to jr. ^ English decisions whu-U aie 

ard complete review of th< ^'^^ Canadian lawyers. 

* _^ Street. ToBonto 

19 Da"*"** **•'••*• 


No. 2 

BY TH \Y. 

Tlie American Philosnn ^ • 

tlmt an award of tho LL- U ^"";,!^**^ ar- ounces 
n-^-^e during the 3^19?; Th, '""T"*' ^'f .^« 

'»o $2,000 gold coin of the Lnlte sZZ ?' T^ ■ ^^" 
soon as may be after t) .^1 I] ^* '' *" '^f. P^^^ «« 
» "s handsome prize is ,en t' .1 '^''"f^^^^^'O" for 

the essay is written in .^ " '*""' ''^'^ but if 

«*. a-. LS'SnlS?- ■ " ■"■^'^ ,"■«" *^"«- 
-»ay » to comain not more " ,«„ « ""f- "'" 

s»e of notes, and must 1, J„ "i "''* •"^''•'- 

'l«T information as to ro^lati™ ' ? *^"> '"■•■ 
;™ be obtained hoXX^XlZt ^:''^'r''''•'' 
> |;;|o»oph,oa. Soeiet,, t04 So.:^;7i,;,[ t^^!';^: 

Jn.nlt'obris't'o,!!,"'- ''°""™'. Educational League of 

•lion, must, one w™M H,ti""^"" *° "»"■"■>• One of 
""■'ki-K man wir„"t »* • ™»'"™'J "self to everv 

I'^on to will awa :„,, , • '",°""'* ™Possible for a 
awaj all his or her estate from wife or 
^"i,. xxxin. c.t.T.— 6 






THE LAi»"^—- 

for eight hundred >'''««•« «^^.^,i"';;;er which -ny man 
creditable i« the "^^^J^'l^^^ rompo-s n.ent. or sub- 
who cannot be shown ^" ^^^^^^..^ the disposition ot 
^iected to undne mmjence ha^ ^.^^.^^ ,, «. u 

hi« estate by will. ^''J^^^^'^ y,,, the rnle of pnmo- 
resnlt of the ^ »^^,1'"^' \"IV iand,-that if it was right 
Leniture in the descent of lan« j^^^ ^^^e in 

Sa the eldest son «^^«« ^. "^^ Xr children, there 
trll disregard ot^r^y^^^^^^lf:, ehUdren shoi^^ 
was no reason wjiy ^^^'^^^^^.^^.^dom of disposition b> 

Restrict in any way ^ »\«";/^;;„eern himself with the 
will. He does not, however con ^^^ ^^^^^^^ 

injustice of the «y«*X_„erS ino]^ciosi tesfamen < 
SJcient Boine, where^the^"^^^^^^^^ ^^^^,^ father's 

secured for ^'^^ d^^^^/^^;.^^^^^^^^^ 

will without 3«st cause, on lo j^^itima as it 

Tave received on ^-^-^^^^{^^^^^^^ries su^ as Franc, 
was termed. Modern ^^^J'^^T^^^^they still speak of th. 
and Spain and ^^^'''''^J^^^^^^^^^ the sam. 

legitim, or -bairns' pait ^^Xcarded it. So too, m 
pfinciple, tViougli Quebec h^^^^^^^^^^^ ^^^^ ea. 

Louisiana u te«^tor who leaves S^^^ ^^ p,,.. 

only dispose ot two4hird« o^ n ^^.^^^^^. ^^ . 
sons; of one-halt if he ea^es i ^^^^^ ^^ ^ ,, 

third if he leaves three duWrui, or g ^^ ^.^^^. 

Sy in certain extn^me ca s is h^a^ ^^^^ ,. 

herit his children aUogeth^^' ^ ^^^ ^^ .^ ^ntano. 
„,any other States of tl^tm p,,Uament >- 

with less excuse th^ ^"^'^^^ to allow our law to bo 
overloaded with ^7^^' ^^X ;h^h a man can cut ol 
disfigured by a system ^f ^^ ^ .^^ with a shiUm;.^. 
all 1" children ^-wev- des^erv J, ^^^^^ ^ ^^^^^ ,^, 

and leave his estate, n ne vv 
lost dogs. 



J m THE WAY. ga 

The great problem of the l)etter adjustment nf f h« 
oonstUutional arrangements of the Empe continue! 

oZ7rM:r^ii "'r^^' ^"^ the'pa,ero?;;;u 

BritLh .tl n ^ °* «""ft'rence of members of the 

all he democracies of the Empire, and elected for he 
<'XcIu8ivo purposes of lonHna. oVi J'^^*;^*^a lor the 
interests- and thpffir • , *^ ?^.*®*' *^^"* ommon 
f^r fhrn;^s of U A .' P;?^'''''"" «»»«»'d be made 

a similar scheme, and co^fdel't a^ m' 'olj^rtl: 

f L ^^i ."°^ coherent constitution of the Emnire ' 
though he admits the difficulty of giving an auZrw'v 
apparently external to each ^minio?^ower?of t^' 
«tion. This difficulty, however, he contends must be 
courageously faced and solved 'unless we arTto k! 

Hon, but i7::::'^zi:v^ iz^titz 

come an Imperial Privy Council 'and Z,l,.n • 
■on Cabinet, should be Con,™itt::? it "'l f^Z. 

'Ke remark of Mr. Herbert Samuel in fliP YTVfi, 
Century for October, 1912, that- '^^^^*^ 

parsed through the stL "f ^ent^ " * """"^ ''*'^'"^ Federation. 
» h"<1y formed by^d acti^.^ I ^"'^^'"'^ '" ^"^ ha«<»^ of 
constituent states irLy te that*"!? ?! «°^«™™««t8 of the 
transitional constitution nffh * ^^^ '"*""•« '^''"s 'n Btoro a 

Empire also.' °' *•** ""« "'"'t^* ♦yPe for the British 

fa Ml 





[VOL. 37 

THE V\JX^"^^' — , + f 

The introduction into ^^,^rvTn England during th. 
a bill to abolish the ^f^^^^f^J ^n of the merits of that 
tar again brings -P .^^;X' f undation in the "accus- 
ancient institution of ^J^^^f \,i^, ^c may now celc- 
^ng iury" of Henry II-"d«;-^^' Q.^^d Jury bas 
hrate tie 751st an-veTsa^^ J|;^^,,th-West Terr. 
been abolished m the Yukon ^^^^^ ^ ^^^^^,, 

tories, but not in Ontario ; and we^ t ^^ .^^tiiict 

7ou; administration of^ 3^.^^^^^^ ^,,, ^,, 

tith the genuine spirit fj^\.^^^ ^^e great expen- 
lontinue. The v-^^^/, ",tf Sir Harry Poland are 
ence of criminal P^^^^^^^^^^^^^ 
:: important that we reprd^^^^^^^^^ ^^ ^^^ y,,,,, ot 

Grand Jury contamed in a 
January 25th. 

TO the Editor of the Times, 

TO the Editor ox .- y.,„^, 

^'''-Z. letter of "Common Law." -Jf J^^X^as studied the 

be allowed to put a colo«sa ^^^^^^^ ^^^^, 

»« - '°".*^S majority of t^- ^f ^Vr^nf Kry. with power t c, 
agreed that t^« /^ T^^^er^'nUary for the protection 
throw out a bin. j^„„ 

accused persons. ^^^^^^.^s. ^^^^%J^^lr Eyre to 

Permit me to give s ^^^^^^^ ^^y Govern ^^ 

and I^ieutenan^ Broad^^a^^ ^^^^^ -Tca^'^He' -toun* guUt> 
hold a court °»""J'/rcbelllon in Jamaica. »« "^ London i" 
of the leaders of^tbe reh^^ ^^^ ^^^f^if^.f^a^ica Committee ' 
and executed, ^f" mentors called ^be Jamai«^ ^^^^^^^.^^ 
1867 some private prosec warrants "om o . 

ilSmed at the f^^-^ZlfZ^^ of murdering Go^^ /,,,, 
Henry *» /"est them <>n ^^^^^^ ^^^^^'S^ aUowed as bef on . 
were held to i*"'^ Criminal Court, ball being alio w ^^^, , 

°«^/^h^rJuX CoSlu^^^ Charged the J^-Vflnd a true m 
Tjord Chief Jusuco Grand Jury i" j^ ,„< 

i^y. and end-vou-d to get^^t ^ ^^^^^^^ ,^^^^ 

^^^*"^LTse two%fflc:« the Ignominy of standing -n^^^^ 
go saved these iwv. ^f murder. Auei chai sf 

the Old Bailey on a charge Governor Eyre on ^^^^. 

Market Drayton bad r^tused^^^ ^^^^^^^^ ntee in 18^^;^^^ .„ 

"^^ "'"'•?::, him under thl Colonial ^^^^^^^^^^.tfZ^L.i V^^^c. 
nrosecuted him unuc Vaughan, at xne i^ ^f 

barf j££»rr sss 'B,.r.s - 

Queen's Bench at Wesim 




Charged the Grand Jury who forthwith threw out the bill The 

unnn rH°f/^"'""'^ "^^ '•""•^"' *^« *•>"« population 13.000 to 
14 000 and the remainder "coloured." The Governor had to act 
with vigour to prevent the black population fron. getting the upper 

IZ J, T °"? °'.'^ """"'"' '*"" *^« ^•=<="««** '>> tbese two cases, 
and feel strongly that the Grand Jury did a public service In 

^)!i^"/,fH f"** ^° ^^^^^ prosecutions, the accused having acted In 
good faith In suppressing the rebellion. 

th- rJ^^^^"^ ^""^ *'^^*'' *°«^-ance8. A man In high position In 
the Church was committed by a Metropolitan Police magistrate o 
take his trial at the Old Bailey for an assault on a boy In the park 

m^lt^H".'""^.?/"'"" '•^'■^^ °"' ^•^^ »>*"• ^ nobleman was 'co^: 
mltted by a Metropolitan Police magistrate (I forget what the of- 

h^^hm '^M "'^.f^^.*'' ^' ^^' °^^ ^*"^^ ^^' «'-^"<l J"'-y throw out 
S.H^, ^'■- .^^''"^^S"* Sharpe. the learned chairman o. J.e 

Middlesex Sessions, has stated that the Grand Jury at that Curt 
ignore a considerable number of bills for charges made In the 
Metropolitan Police district. He also stated that- 

n^n,',*/^^^ T^"^^ "'^^'"^ °' ^^® ^'^'^'^^y °' *»>« Chairman and 
Deputy-Clialrman of Quarter Sessions a resolution was passed 

GrandTuHel^^ °^'°"''' *^^^ " ""^^ undesirable to abolish 

I could give other Instances of the value of the Grand Jury In 

no?elen ^hr^?"°°'- " " " " '""^^ also never be forgotteuTha" 
not even the King, represented by the Government of the day. nor 

or oSar''t!:??LT"*'"''.'^ ^"* ^"^ "*" "'^ ^'« t''*^ ^' the Assizes 
^rv .^tl!h ? ^ ^^ "°^^'' *^* ^'■^'^^ -f"^ representing the coun- 
try give their consent to this being done. 

There Is another use for the Grand Jury, and that is, where 
magistrates have refused to commit, the Crown or a private pros^ 

on thr\m* ''I" '° *^^ ^'^^ J"'y ^«» take theiroplX 
1?^ not« h*t"'; ^'' ^; I """' "'"^ °*''"-* <1 State Trials. N. S. 
175. note b.). from which It appears that bills were presented by 

iTTJZVr^'V? '"''^'•""'^ "^"'•^ ^' Lancaster. 'and JgToreJ 
by them, after what are known as the Peterboro riots (1820) 
against a constable for perjury, and against the yeomanry for 
maliciously cutting and wounding persons when the yeomann- 
were engaged in suppressing the riots yeomanry 

lonir^ Whirr ^°.'^^ ""^ *^* '"''^^'*' ^"t thls'letter Is already too 
long. What I want, however, to do Is, If I may be pardoned the 

^v^r r' 'I r' '^^ ^""^^ *"^ ^°^ ^ P^-^^^^t the Grand JuJy 

-en w r"" ^"'""^ ^"' ^" ""'^ ''^ ^'^'^"^ *^' *-^'- time It Is inco^ 
enlent for some persons to attend on the Grand Jury. I may say 

^e InTe ^etly^jTry^'^" ^° °^^ '^^^ ^^ ^'^ «-- ^"- ™- 
Your obedient servant, 

Inner Temple. . """"'^ ^- P""^"" 




[vol. 37 

44 Bedfobd Row, 
London, W.C. 

January 6th, 1917. 

The Editor, ,, 

' ' Canadian Laiv 1 imes, 
Toronto, Canada. 

-.«+!, hHs been crowded with gi-«at 

constitution ol the new M'n-st'y and I'm 
of a Cabine* of four. '2^!^ ^^^^t^'lfthesize of 
Departments outs*. ™ J^f "^,,,t;e change. The 
the Cabinet b itself a »»ft«™"7 , introduction int.. 
other most '^t^-^'"S;lX^ a" heads of Departments 

un-wisdom) of Government by lry> ^^ ^^.^ 

seven m Mr. Asqmtli « uo ^^^^^^a as Prim. 

eminent member of 1 e ^ar .^ ^^.^^ ^^^^. 

Minister by Mr. Llo>d ^^«/f ^' ,^0^ of the Liberal 
tice as a solicitor until on t^e^f o^ati^^ ot^^^^ 

Govermnent m ^^f ^J^^J' J^J^' J \S. Lord Mil- 

: iarrister ^10 ha n^^^^^^^^^^ ChlLnl. 
pointment of Sir Robert * mia> d 

^a position which many "--g^ ^^^^^^^^^^ ^i,.. 

on the formation of the ^oa ion (ao^ ^^^ ^^.^ 






1900 and Attorney-General from 1900 to 190G and 
only the uncertainties of politics have prevented him 
trom beeommg Lord Chancellor earlier. The new 
Home Secretary', Sir George Cave, K.C., is a Lon- 

of Guildford, Standing Counsel to Oxford Universitv 
and Attorne>;General to the Prince of Wales. A 
Urilliant classical career at Oxford ^ras followed bv 
sucoess at the Chancery Bar of which he is one of the 
recognised On the formation of the Cooli 
tion Government, Sir George Cave became Solicitor- 
Genera He IS the first Chancery Lawyer to occupv 
^e position of Home Secretary. Mr. Gordon Hewart 
fhe'kt^ \" "7 SoHeitor-General and upon whom' 
the King has conferied a Knighthood, is two years 
older than his legal chief. Sir F. E. Smith. After a 

Bar in 90^ f'T' '''^'' ^" ^^°"^'^"- ^^^"^ ^« the 
vZ^ ^902 at^ the comparatively lato age of 32 ho 
lapidly acquired a substantial practice. After spend- 
ing h,s career as a -junior" at Manchester and Liver- 
pool, he took silk in 1912 and settled in London The 

Sht S?r°? T't'' ^" administrative posts 
brought S,r Gordon Hewart more than ever to the 
front and he thus becomes a law officer after the coin^ 
paratively short interval of U years from co meZ- 
ng to practise. Lord Robert Cecil, K.C., remains at 

mcifT^ia^f ^ r .''"^^^^^ ^^ Bioekad;;^-;rhis 

new^W n^''^ ^,! ^^'u J-^"^ ^^^^^"^ ^^'^ to '^e the 

would for .^iT'' ^-f 'H' ""'^ ''k^^>' that anyone 

™ office of '/'''r'nT"'*r f *^°"^« ^'"^'^ attaches to 
nie office of Lord Chief Justice for the uncertai.i 

l-htical dignity of a seat on the Woolsack Loi 

Buekmaster s experience as Lord Chancellor slow 

I'ow uncertain a political career is. Prior to hisan 

Pointment as Solicitor-General, the ex-Lord Chancei: 


[VOL. 37 


lor was in busy P-tiee t^,^?,^S^ 

after filling the offi/^^^^J^^^SCnouse of Lords 

be goes into dignified retirment in me n ^^^^^ 

"^^'^, ^'"i " whe^X 'c al tion Oovernnient was 
siand /hy, when j^e^ ^^^^ ^^, then 41 pre- 

formed in 1915, Sir ^^"^^ , ^^ ^ord Chancellor, 
f erred to become Home Secretai^> to i^ ^^^^ .^^ 

It is rather remarkable to ha e to (.^^^^^^nors 

these time, no f^-^r «mn J-J ex Lo«i L^^ 

^.^^'^""J't'CrFiiy't accepting office that 
!•" Xs^to'a pe^ionlould be waived is a pubho- 
his rights to a pensm than passing 

^^^?fn t^oVpertoi "h" ^orcriti- 

mention Tuose Pers^ Chancellor receives a 

eismin the f act Uia^ ^ ^^^^^^^^^^ ,^erlook the fa*et 
pension of £o,UUU a >e»i, > rejmlarly in the 

'°«.,1f Jhe Pri^ Council, in fact d. j»^ the same 
of the Lords of Appeal a. a peru al ot ^ ^ ^^^^^ 

supreme Appellate Tribunal. ^ ^^ 

i„g the °'™f ^° ,*:alet "movaUe only upon a„ 

Mke the 9°"/^ J™J,'';, Parliament. Bageho, 

iress fi : ■ "f* ""'^11 ' id- " The Lord Chan 

.ting so fa.- l«»=l=^^,^*jf "Xrv ^. obyious prin 

""r ?Jt'l' ™rt aaZSion should be in 

;red* tfaTuarH i° of very grave moment that ,„.. 





a^Jmmistration of justice should be kenf .1 
sinister temptations. Yet the TmvT n^ °n ^^ ^"-^ 
chief judge, sits in the Cabinet^ Chancellor, our 
speeches in the Lords- A^^ t T^ "^^'^^ ^^^y 
had himself been W] rt If'"^ Brougham, who 
«aid:-JudgesoLhA 1 TL'°'' ^"t'»^ in 1861 
the GovexSStTt stt '"^^^^ ^" ^^^are in 

ing political office " ^' ''"^ ^" ^"^«P«We of hold- 

The Lord Chancellor has annnfnf^ 
to consider and renorf «« f^ 4i ^^P^'"?^ « comnutteo 
and distribution of thernf 'n'^'"^ arrangement 
Court centres w^^dal ^^^ L^et tf""^^ ^"' 
of pronding conveni^,t access to ?'- - ^''^'^^ 
gants and the desirabiJitv o7tf? r ^''"'^•' ^^^ ^^t^- 

tixne and money in adSattn^'^l^'t"^" " 't '' 
w necessary is rAn^,'!,- „ ^*«"on. inat some reform 

Court retuTn '^T^^ IZTJT "" '''' ^^""^^^ 
a County Court judge te't*^^ ^"^^^"^ ^«>^« of 
stances less numerous than ff^ 'I °°^ °^ t^o in- 
jure. No judge apparentl? ^"""^ ^^ ^ ^'^^ ^^"rt 
^hile 25 ju4es (nSy half thi'.'f f ""^' "^ ^^^ days, 
^^-1^0^ O'nejldgela^o^^^^^^ sat less 

membered, that some of the Count Pn i • ."'' ^^ ^^- 
to spend a considerable ffrr," I ^""""^ ^"^^^s have 

ele^r, that even when elervS^^ "T?"^"^' ^"^ '' - 
the average Countv CmlrT • ^^ '' ^^*^° ^"^o account, 
a week. ' ^''"'^ J"^^« ^'^rks only three days 

From the Annual Renorf ^f +i r» 
;^arn that the Council su^t^' " th « ^?""^ ^^ 
they should make such an «Ho /• ^^ ^^nchers that 
tions as would eL^werthf !'*'''' '" *'^^^^ ««^>a- 
<iee an alien mXr of th:^*!; 7^'°^ '^^™ P-- 
that the Benchers LLf^ Bar dunng the war but 
ti.o alteration """^ ^'^"^ '^ ^^«i^aWe to maJce 

su-vief of iuries dnrJ?/ Ti Possible dispense with tJie 
-and juries is under lerfortn^^^^^^^^^^^^ ^^ 


■ h 




The new Larceni, Act ^ame into force on the 1st 

in«tlti7a curious measure. While to a large ex- 

ent of a Uol^ating nature, dealing with mo^ kinds 

of larceny and covering bur^^'ary and housebreak ng, 

it leaves spme of the previous enactments unrepealed. 

One of the most important events of the month has 
been'e summoning of an Imperial Con^-e-^^^^ , 
date not later than the end of February^ Ths step 
which was foreshadowed in Mr. Lloyd George shrst 
TpeSilB Prime Minister has met with universa sati - 
fSn here and will be approved no les^s by the Do- 

minions. ^ 

Mr Bonar Law, speaking in the House of Com- 
mons wlXtfuHy admitting the constitutional doc- 
Tme that a Mh^^^^^^^^ of the Crown should be a member 
of one of the Houses of Parliament, stated that, m the 
: rcumstances of the present crisis it -s not in^end^ 
that the Controller of Shipping «hou^d be a nimbe , 
either of the House of Lords or of the House ot 
Commons. , , . , , „ 

Since my last letter a distinguished ex-pudge ha^ 
rJZ^ly Sir Eoland Vaughan WHhams who 

d^^tn Smber 8th, at the age oil^^^ZtoVct 
stock His father was a judge of the Court ot Loni 

until 1889. and in 1890 he was made a Judge ot tn. 
Kin^ SnS Division in succession to Mr. Justu.- 
M^y He had previously published a treatise on 
BanSuptcy (of which eight editions have appeared • 
axS^itTas doubtless by reason of the a<^quaint.ncej. 
nkruotcv law and practice thus obtained that n 
1H91 b^^-uptey'oss was specially assigned ^ 
him In 1897 Vaughan Williams became a Lord J 
tt^" of appeal, a position which he retained until In. 



retirement from the Bench inTou a • ^^ 

first mstance his bort ]cruZ !i • • ' ^^^ « Jud«« of 

judgment in that Tse afT V^"^^^"5^ ^^*^- " His 

Courtof Appeal laTevete^h 7 ^^'"^ ^^' ^^^ 
^« an Appeal Jud^ J! w ^' **'^ ^''"^^ «f Lords. 

J"s coliea^Sies and^L bT TT'"^*^^'^"^ ^^^h to 
™ prone to put involv^ and n^fr "' '"^ ^^^'^t, ho 
«Hions of Jaw before c^nsef fn """'^-^ ^""''^ P^«P«- 
was, however, always naHpnf T ^""■^^deration. He 
"s death reedvedTom one oHf "Tr^^ ^'^ ^^er 
^s perhaps the best trTute if.h f/^ W^''^ ^h«t 
^as, said the -iter in H f^ T^^ ^^ ^««ired. He 
When the Libera OovernXf' "^ "P"^^'^ i"%e." 
a Royal Commissron C apnoinT iT '^^^ ^" ^^^'^ 
the position ,of the Wehhrlr^}'' ^°^"^^« into 
Vau.han Williams .aTti:.e'cSll -"'''' ''' ^ 
Ponsible'Stl^;"^^^^^^ ^- res- 

spieuous ability, wor^Ivw .^-^"'^ ^^"^ «"«J» con- 
tions of that triC^ hi Zf "'"T."^^ ^^^* t'-adi- 

At the close of Vi! Z f '"'^^^^ ^ ^- C- B. 
were, ^esptu^L^^^^^^^^^^^ the Court. 

cupied otherwise than in nS^^^,^!;^^.^^ ^^^^^ been oc- 
of their work. ° ^""^'"'^^ ^"ties, well abreast 


W. E. Wilkin 




[VOU 37 

«v ;„ i.rniic of the Common Law 
One may speak m oi . ^^ 

though one doe, not "^ard .t "^i^U^^idVrking 
originaUng in thebo^c^ of he A,^ ary light of 

constantly "'"' ."'"""°' „, 1,,,^ and the fulfilment ot 
reason for the d.seovery "« *"*» »d me ^^.^^ 

Dr. Johnson, who was not a J^^y^^' j;^^;^ ^^e under- 

standing are aPP^^^^^.^^^^^'a *s t should be meted 
That defines law exactly, anrt as ^^ . ^ ^an 

°"' •" ft ^^oTf uX nnXUers, how- 
. or need be said ot i^- /" ^ ^ ^y either unsus- 

ever ^^^^'^ir. wlTef ^s or fnhere^^ disability of 
pected constitntional defects or i ^.^^^ 

some kind from ^"^P^^^^^^^.i^^i'Lleswith the result 
and with equal success ^P^^^^^^^udgeS' with ^^^^ 

that cases are «o"^«t\«^,^^f.^^^^^^^^^^ Z consider law an 
not enable ^isappomted litigant^^ 
exact science. An ideal admimstration o j ^^^ 

Lpposes that the sh^^^^^^^^^^^^^ 

Because this <l--\\\^,f //^^^^^^^^^^ 

not a^-y^ J^;'tt ^IX^^^ on the part o. 

complam of 3"dicial misa -^ ^han Lov.l 

their brethren, an.d no less an a j^^^ ^^^^ ^^^^^. 

Halsbury has made the tiistorica ^^ j. 

is not a logical code, -"'I /hat c cr la^^^^^^^ ^^^ ^^,^ 

nowledge that law is ^^^^^^/^^J^^^f f'r what is uut 
viously the statement is not accurate, 

1917J P.ACE or ..wvKR IX Brsi.Kss likk. 93 

tion between JaV a a lli^T' "^"'^^ « ^'^t^"^" 
jud^ents of the cCt wt^ faif t^^r "°' 1'^ 
on ultimate loirie Tho tJlu ^ ^'^ ''•' grounded 
profession, never no m«H ^'^'' ' *"'^ ^^'^ °f hi.s 
tlie fundaienta princX o'f t:''^?'-^' forgets 
contained in the orKov Lf • ^!'f^' jurisprndenee 
In so far as J^'^^Z^ et^f tlf ^"^'"•^>'- 
they are wholly of no aeeo mf T . f ^"^ ^"""^ ^'''^^on 
no matter horbinZrr "' '/^*''"'"^^^ 
being they may be Sv rn T^?^'^ ^"^ "'^ time 
into the limbo o?' fo?.ott n and"' "'!?•'"'">' ^'^ «- 
along, say, with many of LoTd ChanX R^'' l''"^^ 
judgments. For there arn rl .«^ • 1 f ^''°"^'^«'n '« 
perfect fruit has been Ih,!^ I"' '^ ^^^ "^^'^'^ its 
in-digested learninror er,^r ^'^'""^ *^" ^^««'^ «f 
such is the Engliriaw of "an"' T' '^^°'^'"^- ^^ 
the master mindfof ,Te Eng S^^^ "^^'"^ ^^^ ^•- 
hardly one hundrpd .^11 "^, '^" ^^nch in a period of 

nershfpTet To consid^ ""f T^ ^''^^^^^ ^° ^^^^ l^a^t- 
and to perceive Its ^a^n f '* T''^ "^ workmanship 
ciples fnd to realfze ^,e fa?"' ?' '"^^"^^^ P"" 
makes for well-S "v-v ^"'^'^"^^ »"^ provision it 
prehend the daim that fh^ conceivable case is to com- 
Product of luma" w^dom """" '"" ^^ '''' '"^'-^^ 

^4^:1:! l^r^ V ^- - t^s way as 
it is that law has lot l?n '''"''' *" ^""^^^^^ ^hv 
among business men Vhf"- "" "T'"!"^ "^ ^'"^^^^'onr 
'aw exists for turpubli V' !? ^''^^^^ '^''^ ^^'^ that 
needful and rat ond institution r^r^'"'^ ^"^ ^^ « 
-eiety, though solXt^ed l^s-" ^' 

people have the notion fl,«f T simple-minde^l 

lawyers. MerchantHa ' 1 dTea^^T'^ ''' "^^ 
volved in litigation. They shrink f' ^•?''"^"^ ^°- 

-. .ere but ev^i^^^^fev^^— ^^^^^ 




I ' 






[VOL. 37 


iV^^lsToTo" sf^^^^^^ ^-- the latter year 

do^ to tlL present time to see l?^ ^I'f.^"^;.^"^^ ^^"^ 
down ;^ " I ^ J commercial litigation. City 

'''''' !n I ondon have been especially outspoken in 
Tres^ing the" want of confidence in the Courts as 
proper trfbunals for the settlement of commercia dis- 
nutes Thev complained that counsel as well as 

S:s were- -^^« ..^s^ ^^ 

Ir'nSfnrund^^^^^^^^ ^-^-^ 'T' 

I'e "on submi^te^d to them, without tedious explanat- 
carried to unreasonable length, not only at the expenst 
.TiC iLe but the excessive monetary expense ot 
HnM And thev said that when oven that was done, 

•n:ppentd tha^^^^^^ 

matters in hand had not been arrived at They there 
fore preferred to make use of arbitration clauses n 
hek trading contracts. The objection however, to 
IrStrluon even before boards provided by such trmle 

upon a sounder basis of morabty. Tl»^^.^^*^f .'" ^'y 
V dod for in a provision of the Arbitration Act, 188J, 
)remred by the London Chamber of Commerce under 
wS ouestions of law can be referred to the Courts. 

whether it suits the ideas or the convenience of tl. 
r 'otssion or not, the Judges of the «-«" » E 
'Division determined in 1895 to ^'\«V ^.^^JJZ 
mercial Court devoted to the despatch ot business <1. 



1917] PLACE or LAWYER ,X BrH,NE88 LIFE. 95 

Pntes. Tliey did so and thov saw fn * ; a . 
invite the confidennp ^f /i. ' . '^ '" ^^^^^ to 

was presided over bva^"'^' cojnrnerc ml classes that it 
commereiar law and abl wiH "T^^" ^'^^^ """"^« '» 
questions to ^^asn fl.n i. !'^ ^"'''"^ "''^ «t"Pid 

his wav thrmSftr '^'l'' '•*""<''^" «°'^ t« thread 

judge was Mr jtti e A^ew wTo ?„lr"- ^'^^ 
reputation as a „rpnf ' ,' '" *'^'^'t'«'^ to his 

ability .„ unXr^taS: .dT.Tr,fJZr;. ?''■ "'' 
was impatient of i.]J („„i,.- ,■.. .™"'"""^'''a' views, 

He shapodthe prac i Ittn n"':" '^«''" P™™da«. 

haw, vol. Ill n '^O'^ T1.1 .. , ® ^^^- ^^^y- of 

•so satisfactorv ihat l.n5 '^ ^^ *^" ^'^"^t ha« been 

that their leLn"^.'^''""''-'' f^^° "^ England perceive 
under ClshLw^^' '"^ '^ *°^"" ^««er care of 
than tl^tfhXCrrra^bt^^^^^^^^^ i-- 
No grievance can Ibe lejritiinafAW f^u v. 

Manitoba in this rp«8no/.* I u ^ ^"^ -^^r of been Tn the Z »' " '"^""^ P™«"«^ive and 
liMlo do its melerbotrabfut «rpl "'"™'- •'*" 

»i 1 arke, B., afterwards Lord Weimlovrioi^ u •. 
""ff the hard Inf nf „ , ^ ^"'^^^J "alo, who pitv- 

..i'ade/id sn^po" eT';,s":erdrr?7"^' ''' 

instead of case added- ' n). J T. '• • ^^ trespass 

;n.e deoiaratio; ^,^2 to ha^ete L'^'L L"' H ut",' 
l>een he would ha/e won- hnf if +,7 V .• ^ " ^^ ^^^ 
-pass and ease ral^lis,",' d't^'^Tet™ ''r"" 
a7r;eason'':i:n;s"" '"7 >* "-'^^-^ ^Ma^if^b": 
vuFK 01 Its Courts IS not congested 


P '% 




[vol. 37 


and the judgoH dispoHe of cases before hem TVith 
SrlAUs. Nor can the expense of litigation unless 
earned to the Supreme Court of Canada or to the 
JudSal Connnittee of the P"vy Counc^ be .jrged as 
the cause. However oppressive it ";«y l»« >\^^ f ^he 
where counsel lees seem to be on a fabulous scale, tiu 
CO t of a law.suit in Manitoba is kept within almos 
parsimonious limits. Perhaps this will be believed by 
u" public when it is told that to-day there are some 
awyerH who against their will and their higher na ure 
arldrWe^ into the hazardous speculations of the wheat 
margin the hope of raising funds to meet Passing 
real estate obligations rashly assumed in order to ekt 
out the meagre%arnings of their vocation and make 
decent provision for their families. 

One has only to think back a few years concerning 
the c"as of work that has come before the Courts oi 
Afanitoba or to -glance through the Manitoba La^v 
Keports to realize how litli. Ihere has been of com- 
rneS litigation of much worth. The explanation 
Sven by business men is that they regard it as ba. 
^^an'd an undesirable advertisement to be uBxed 
up in a lawsuit. They also tell lawyers something 
else-something that lawyers should be mmdfu ol. 
and it r:{artU«g in its significance and its imphoa^ 
tions They report that in consultation with then 
;: 'advise's they are told that the -suits of a a. 
suit are so uncertain that no assurance can be gi n 
as to what the up-shot of an action will be. ih.> 
therefore prefer to bear the ills they have than fly 1" 
iSs thai they know not of, or to put up w.h a lea. 
settlement rather than endure a fat lawsu A ' 
they say that because of the law's uncertami> th . 
ha/e been driven into forestalling controversies . 
exercising foresight and securing advice as to H 
terms and effect of contracts before making them, 
despite his precaution differences do arise they 
it as good udgment to adjust them peaceably ^<' 
arbUrSion and' they say that in this attitude they nM> 

i^aRBi-.- • V 


»''.ACE OF KAWVER l.V BI'HIneh« Mkk. 

afraid '„, it. Pom si ,f ■''""'"""". '"<■" "I"""'' I'" 
for uncertainly m t"X!l " "»""■"""•» |..i, down 

fe».ion., ,..ind! U l^^t^Z^ri^Z d" "'° ''"■ 
went that no detVatcd litLnf • ''»«aPI>««"t- 

bow to. Unoerta nt does l" "' ''"^"^"^' '^^>--'- ''«» 
liHhecI when a eas^Joes fro„ Z )T^' ?^'" ^'^ ^o cstab- 
'nuch variety of Cuno .n ^ "'"^ ^" another with 

disagree.„en-t auU" -rKefoTZaf^''': "' "^''^''•'- 
T« r« * ., J ""*?«« 01 equal emmenre. 

law^dTotd, rtirtlSk"^ ""'T""'- ^'^ - 
""ly . sound but a „11 ™™^t T" "if *;"'"*» ^ '^ ' 
State to assist tbenT i 3? .- ™ downed bv f, 
presided over by™,' ' ?5"''t'nK Ibeir disputes and 

•ask tbat is dema,dedo, £'':':? "*'""'""'-' ""■■"• '» " 
"Hd by tbe spirit of ,bf„^:r ""'" "" " "'"'" -'"'y 

l-!:;prete,;\S,rf!"„"r ^'"".""-^'-"ty .an . 

<l-e is no doubt tttteTe'rn:*?';:;:'''''''';" "'■ ""^' 
very much diiniuislied m. '^ f insecurity cau bo 

an,l been imp" sed bv Zl <^"'^''"''°" ''as noticed 
P^ls are taken as a ma to T"""'" '"'"' "'"'•'' "l' 
"■outs of tiM. rial cZ fj""-""' '""" ""• •i"4- 
■arried to uc e„,^tl ,'i' ^°"''°'«'- " ''"^ I'cen 
almost bee, deveSh! ■''" "'''"'""*<' -^J-^'™' !'"« 
'l«-i»ion of tbe t °a' CotT ""'"" """ '''«' "•"' ">" 
Tbe nun,bor of%'o"l«r • l^^Z^I^^' ^7?'- 
apparently created the ^■iL ,L,Z "'.'V'""'' '""* 
merely a receiving bo LV , """ '"«' <-'o"'-t ■» 
i» notuntil tleS t of Vn„' ,""""' '"'*'' '"'" "'^' " 


vor,. xxxvn. c.i,.t.— 7 

■ . ;.;>i'r/r2aM£.'iiii#^ :iwr::. JT c >kf?*?v*^:-ti's. ■:j'-.m, 



[VOL. 37 

1,een tHko into Court. Tliero is no reason why the 
iudjni IT oi- a xrM .imlge shonld not be regarded as 
settln ' fr.itU a c(m -ect view of the facts and a sound 
applit-inon of tile law if he is doing painstaking work. 
If it is lo U :h.t well-nigh every .iudgment is to be 
appealed from, it is natural that the administration of 
justice will suffer in public esteem. No judgmen can 
be slightingly referred to without general distrust 
l,eing created, and no condition can be satisf actor j 
that does not regard the judgment of hrst instance 
with some of the confidence that is placed in the 
judgment of the Court of Appeal. If a choice is to be 
maras to whether the stronger men of the Bench are 
o be trial judge, or on the Court of Appeal, I l^imk 
the argument, if set forth, is mcontrovertib e that the 
stronger men should be the judges of first instance. 
Appeals are naturally distasteful to litigants for m 
addition to the delay and expense they keep the mat- 
ters in controversy in agitation and uncertainty A 
man of business wants finality and he wants it quickly. 
Tlie English law reformers of 1872 were fully alive o 
this fact. While quite agreeing that an appeal should 
be open and that a case should not be disposed o 
against the will of litigants on the same principle that 
a prize fight is ended, namely-by a knockout-blow 
though administered in the first round, they apprec. 
ated that appeals were a great source of dissatisfao 
tion to the majority of litigants who desire to hav. 
their cases disposed of by a competent tribunal a^ 
cheaplv and speedily as possible. Therefore they pr.| 
posed io abolish appeals to the House of Lords by en.l- 
ng an appeal at the Court of Appeal and they pr.. 
p(ied to constitute a strong Court of final appeal n^ 
one of the principal features of the Judicature Ad. 
However, in 1874, before the Act came into operation, 
there was a political change. Lord Cairns succeeding 
Lord Selborne as Lord Chancellor, and in 187b th. 
appellate jurisdiction of the House of Lords was i 





J- uo nor aarep fJi«f if lo ^ 
a Code in order to nakotl./r"'?-'" ^"^ *^^^' '^^ i" 
Jaw were codified tletli r f^"''^' ^^^ '^^^' '^^ the 
have been exorcised fVc^u of "f^^^^^^ty would 
Tl.e history of VaJZj' ^^'^^^"^•*' «f .iu^tice. 
reveals that a Code h^ as^ r*. '^ ^"'^' "^ ^^"''^^''-^ 
•^ophistrv and suunjo HnnV '^^™ ^^ ^''^^'^^^ i'o'" 

originarstate. Tit e l^^^ro^'/^'^ '^^ ^ ^^« 
sion the words should be uS^titl ''°'^ '^^^^^" 

broader tiian their ordin ,rv Z \ "* "^^a«ure much 
accustomed to think thatTf a !«" °^' ^^^^ ^^^'^ been 
Hng law as sJiown in d stinlui r-'' 'T''''' ^'^ ^'«"d- 
and advising upon the law l^^ '?^ ^PJ^^>'^°^ ^'««^'S 
qualified practice .and!;i;: ''" '^^. ^^^'"^-^^^i «« a 
be made a K C wTdZ^ ^' ^ '"'^^''le person to 

-arks. T]mt vC tt tT " ^'"'^'^^. '""^ "^^t re- 
•^f the day when ^e cons der^^"™? the needs 

I'Jicated much businesH It w ' '°^ ''^"" 

to advise in. Tlie Irl^f It ^^'^f' ^^^ *^^"^d "Pon 
^'"d the intricacies of com^!r'.T" ^"^^ ^"« ^ooks 
better equipped thah uTT^^^'u'^' ''' ^^" ^^^ 
acquainted witJi commerc al iLT) l^ '^^/"Petently 

;"«tantlycomprehendaIl ie a to of^r''- '''^ *" 
''<'"Ity with the same rauiditv T ^ business dif- 

t.ained man of bus less eo^M^ ^f completeness as a 
'' lawyer is not elficient .n f i " ""^ '^'^ ""^ ^^^'^'^ncv 
''ispute who is norex^er K- « v''^''^ '^ ^ ^usines's 
^•f intricate busbess Ike I' /^^^^^^^^l^^b the methods 
ordinary view is th„f f "^ ^ T'"^ before him. The 

'"ake himself acq ant dwith^tf"' ^^ « ^^^•-'- ^^> 
transaction when it ^, l„» I. ^^^ "^^"'^ ^^ a trade 
considered trbe time T ""f f *^ '"°^ J"«t as it is 
"-chanismof apieeTofSin''' 'T *^ ^^^^^^ the 
arc in dispute The d^ff^r''^'^'^"" P^*^»t "^hts 
P"to the lawver who is f of!"'' /' ?'^ ^" « patent dis- 
^0 have the inventon ex^fn^H .'" -^-^^^^^^ ^^ «"PPosed 
ness situation h^ s Ln ^^"f ' ^"°^' ^^''^ '« a busi, 

"«"• I am led to mak/i' "'' ^'°''"' P'^'''" 

^■^Perience I had a f^wVe^r;;,^ ^i falling an 

years ago m meeting a London 



„ sp»e.ahs m gian tr _^^^^^ ^^..^^^ the London 

adviser of man) ™«™ ^^^..j „„^ as not only bemg 
Con. Exchange. He i"!'''"'^ ^„t he made it 

,„„.t ^?l'»We and sonnd - a law5.e ^^_^.^^^^ ^^ .^^ 


Ipdcre not only of law but of facts, 
ledge noi ou ) illustration of efficieiioy 

One likes to think ^^ ^b^^^^^^^^^^^^^^^ xnentiouo.! 

contained in an incident Sir Irancis jeu 

in an address made a f^^J^^/^^^Xe^o the initiated, 
he once heard an argument, complete to ^^^ 

which consisted in the -y^^^^l'^^l[Z response of 
Dy ine juLg_ , 4„/io.a nointed out tli 




not trained in !■'» --^^'^.^fi^^^Towhither, thron.l. 
Stanley laborionsly wandering 
snnless forests, with pygmies foi gn.des. 

There is a fnrtUer matter ■-;;■--- 7 l.'"- 
„Weh opinion has and may we be d. id ^ ^^^^ 

chants who know somethmg ''';"'"' f"°'„a™ts in Hi- 

not r^mid^;"'.:™ ti; L? TatLes ... 

legal system, and t ie> naNf i .^^ 
ai!posedofnotontehasisc.w^^^^^^^ '■ 

precedent descended romhgo^^^^^^^ ^^ ^^^^^^^. 
under conditions wholb^ different ^^^^^ .^ ^.,, 

The professional answer i^' ^»«\;\^^ J ., founded on 
lowed because it lays down a P^^c^. e ^^^ 

sound reasoning and adapted to do 3"*^^^ 




ever, should i.ot ^o \,nre ^^^^^^^^^^^ 

-I'en t fails to provide ^r,; '"^ ''-^^^^ •^, ^^f^^tivo 
ree the Jaw not from ihk h ' , ""^ "^'^''^^ J'"P« to 

"^justice if we ^^ot awa f, r^^'' ^'^ ^^'^"^ occasional 
precedents .nd ladi^ " '7, ^^''^.^•'■^^' « ^^^-tion to 
-J-tI.ei. or not thev clnfo u to ,7'^' T' ^"^"'-<^ 
^fe' facts of lifV, It is o^ V ^^./'-^^'^ and chang- 
^'^tality of the CVmmon C, t' ^'-f ^'^^ ""^^''^"^ 
power of adaptation to new CO S-;" ''' ^^-^^^^'^^^ ««d 
y«rious and novel they m'^ iT v''°' "" ^^^^^ ^^ow 
m the profession is tint ,„ i p ?^"^Peteut opinion 
and uncertainty are tol ' ' "^^^'^/^^ever confusion 

of the iudges to foil w ^ ^c j^^t ^.V M '? ^"^ ^^""- 
'nation of the Jaw f,, ., '^^^,?dent and to k-ave refor- 

i'ave J.eard Jawv^J , ;;:^ ^'^ f ^'- i^^- ^ture 'l 
regarding .asej wJ.i ,, "^^ f/^^"'^ •^'"''^-^^ for dis- 
""f ''-^ -0 in J.and I^TnotTlr '''' '^^^^'^ 
notion wJiicli must be JeftboI.ini .1- *''^^ ^^'«t is a 
f t is by some of tJie best ud^ '" ^"' "^"^'^"^ ^«rJd 
t^^eir judgments to be pu "^f '^'T^^« ^ecJine to aJJow 
J^rocrustean bed? ^ '" ^''" "•'^» frameworlc of a 

^on^:? iiS^^ni^Sii:^^^^ --- -^ -oJu. 
deprecate impatience wit T'''^ "^""'^ ^"« °^ay 
''^ maJcing, one is Tnd^d 7' "'' ''''' °^ ^^^ 
^'^^''^tly some lines in T^nn To' N ''l!;\T^''^-^.^^ ^-^ 
"Our lim. , Memoriam": 

\r„ ■ '"' '""••e than they." 

^^-pS:;Jt:S::tS/ a decided case or 

"nl^^ss it is addressed to he fac '. ''""'^ ^« ^''^^^'^ 

.'o^ever suitabJe to a bus nes!/ '" ^""^^- ^ ^^^^^'on. 

W\v or a Jinndred ve^r. transaction in En-land 

^V'"^--d agabi h'Sne^^' '' T^^^*« "'^-"^ 
«da to-day. The occlsioTZvT^'' 1 ^^''^''^ ^'an- 

-'-p-dent that sprL^^r loll;: Sn:! 




.3.tem of law. Lord Bacon ".his -ay o„ J— 
.ays, ;• TI,o law cannot f^\-^2Tv<^^i l.»PP "^ ^-.t 
suit those tlnngs ^'"''.'*°V,7„ Ancients) is the most 
Time (as has been said by ' '« An«e°t. ' ^^ 

fertile of thmgs; e^;^--!'i',^ ,^'';™ '^,°ew is that the law 
new circumstances.' ^ « modeni ^^^^^^ .^ 

can meet all cases and "'a it hns not .. 
its growth. P'"''J™'f >„'] '^^er^," » V. Rolarts,' 

ea'ntf a™r%u'irements of ^^J^^^^^:^. 
oumstances of commerce. P<""78 °" „ " je^ and 

IS out of joint with tuc I ^ ^^^^ 

r ,:rs£ s~ .;■ - - tsi t 

• L. R. 10 Ex. 346. 
'12 Q. n. D- 601. 




and that liberalizing influences are at work bringing 
the law into harmony with modern needs, and making 
It a nsetnl instrument for the service of the business 

The attitude of business men towards the adminis- 
tration of law would also undergo considerable change 
It they found Counsel in Court abandoning forensic 
competition and over-reaching methods and engaging 
in an impartial eiiort to bring out facts and to have 
justice done. The idea of the public about lawj-ers is 
too often that of Tulliver in "The Mill on the Floss " 
Tliough he had full faith in the honesty of his case he 
proposed "to employ the best game cock with the 
sharpest spurs he could get to fight for his rights " 
We allow the s,)irit of partizanship to animate us too 
much and we allow our clients to expect it of us A 
lawyer who is uot zealous for hi ; client's interests is 
set down as w^ak, particularly if the lawver on the 
other side is tenacious and overbearing. This siurit 
has become so much second nature that instances are 
treshly in our minds where even Crown Attorneys 
were accused of a desire to secure convictions The 
profession would act more in consonance with its 
digni y as a great calling, would be truer to itself and 
would in the long run deserve better of the public' if it 
considered that its duty in matters of commercial liti- 
gation lies not in worsting the opposite side but in 
helping the Court to arrive at a proper conclusion. 

All that commerce has of securitv it derives from 
the law. Step by step there has been laid down for it 
by the great sages of the i>rofession the stones of foun- 
dation principles that define and safeguard its ri^'ht- 
Upon them there 1ms been built up the great fabric of 
credit and mutual coniidence that has brought the vast 
world of commerce into being. The work which be-an 
long years before Lord Mansfield sitting in the Guild- 
hall gave statement and cohesion to the mercantile law 
<)t J^ngland, can never end. Law penetrates every 
commercial transaction just as commercial needs are 


[VOL. 37 

the essence of mercantile law. To interpret the law, 
to advise upon it, to enforce it, to put it to right uses, 
remains the business of the lawyer. It is also for him 
to mould tlie law to meet the changing ne^ds of com- 
merce in order that commerce may not outstrip law 
and be without its protection. 

The ]n-ofession in the west and especially in AVinni- 
pe- is l)oiind to keep its mind hospitable towards all 
idea>< that make for the advancement of the profession 
and that commend it to general esteem. Opportunities 
of unusual appeal confront the profession m the west 
by reason of the tremendous development that is bound 
to take place in Western Canadian commerce. Winni- 
])e<' as the centre of the grain trade of the Country, 
has taken its place as a g^eat commercial metropolis. 
That position is constantly becoming more established 
and augmented. . One cannot doubt that it is destmed to 
be if not in population at least in importance one ot 
the first commercial cities of the Dominion. As a rail- 
road centre and terminus it will hold an outstanding 
place not onlv in Canada but on the Continent. It 
will be as it is fast becoming— one of the great banking 
capitals of America. These elements of great com- 
mercial activity are already in Winnipeg and to their 
growth there hardly seems to be any bomids. The place 
' of the profession in a community with these potenti- 
alities and this achieved position should be an enviable 
and commanding one. I try to think of the part 
lawvers will plav in the history of AVestern Canada. 1 
can see the activities of the profession takmg on mani- 
fold form and overflowing in fruitful channels for the 
onrichiui-' imd confirming of the national life. But m 
tl,e end.'the most enduring and beneficent contribution 
of any the prol'ession will have made will be in making 
and keeping law the great auxiliary of the Country's 
vast commercial interests. Fortunate will be the man, 
who looking at his share m the laimur oi it, will be 
able to sav, '^ The work of my hands is there. 


W. H. TtlT'EMAX. 

)^ T^^mk.-: 






The task of tlie Canati\ar, m i • . 
tion to the subiect of r^ " ^V'""'^'^'"" ^» ^eh,- 

of the Do.lif„"tTe 'r::test ,r" '" ^"""-^ "'^"^ 
consistent with HatilfviZ T''''''' ^^ ""ifonnity 

oonvenienee. Mam ne"lf« ' ^^^y^^^i^^-^ of need or 
in forn. and siZtance n t?'' "''''' "^ ^''^' clitferences 

<lraft.smanship ],an of\T "''^'"'' '^ ''''^^^^^- of 
-reumstance'^nd need It ^'T'"''"^ ""'"'''^y «t' 
aocidental dit^-ereles for fl.f ^''^^•^™»^•«' of these 
fawvers and of In in ': '? ^'''''^''' ''onvenienee of 

thai wiJl he e i^Siir" ^'""^"^''^^^t the Dominion, 

m the law wln-ch will ZetlZ "^"^V''^^''"^'^^"^^*-^ 

The result of ,-«. ?7 ^''"''''^' acceptance, 

-ittee J ti;' ^ r ^tlir ^ f *'- J"<^ieial Con. 

^J^e proportion ,of ompanie IT ''" ^^" ^"^^'^'-^^^^ "^ 
^ninion authoritv This ° ' "^^'^^-PO'-attHl nnder Do- 

tJ'o Province of Ontario\^,e fproSncff f^^' ^^"'^ '^^ 
commercial and nianufact, H. ^'^''''^'^^^ charters for 
"lore the vogue tirnii'^h^ '*°"^P^"^^« ^^re mnch 

'" of com^anietLweve ' wi,rrir'^- ^^^^^^^" 
to operate under provincTal .o' "^'^ .^'^"^less continue 
Posal of imiforminmoTi tr'"I'/^''^- ^'">' P^^" 
'>'-ace the Dominion Tt "f we ^f Af ' ""^''* ^^ ^"^- 
reason whv the princinles S f "' ?'^'" ^J^P^«^« «« 

<lotails,of theDoSnand the ' ^''^^ ^"^^^"^ ".e 
"ot be the same. ^''^ Provincial Acts should 

The suggestion has indeed been n.M.i ^ ^ ,• 

^ ^ 




[VOL. 37 

tional i.robloms surrounding th« suKiect by I'aMUjj a 
common system, under concurrent leg.slahon of ho 
provinces and the Dominion, wlierehy the lurisdiction 
of the province, and the Dominion won d be united, 
charters beii ^<\ by the provmcml Secretaries 
or other provincial officials as persona desifjnata und( r 
a Dominion Act, and fees being apportioned m some 
cquit^vble manner. Any such arrangement, however, 
if considered practicable or desirable, would follow 
rather than precede, a harmonization of the provincial 
svstems. Moreover the Canadian Bar Association 
will probably wish to avoid the risk of becoming .in- 
volved in any contentious constitutional (luestion. 

Assuming tiiat it will be deemed desirable to in- 
clude in the of harmonization both the pro- 
vincial and the Dominion Companies Acts it may be 
observed that while the Acts of most of the provmces 
have undergone a large amount of revision during the 
past live vears the Dominion Act has not been revised 
since 1902 and the revision at that time was not par- 
ticularly thorouglL All of the provincial Acts have 
been enriched by provisions taken from the Imperial 
Companies Act, but very few of these have found then- 
way into the Dominion Act. It seems safe to assume 
that there must shortly be a revision of the Donnnion 
Act and it is manifestly in order that the question ot 
the form and content of any model for uniform legis- 
lation be considered with reference to such revision. 

An effort in the direction of uniformity will require 
as a first step a consideration and determination ot 
certain broad questions of principle and of form upon 
the disposition of which the whole framework am 
many of the details of the draftsmanship of an Ac 
will largely depend. The first and most important ot 
these questions is : — 

1 Should the method of incorporation he by letters 
patent or hxj registration of a memorandum and 
articles of Association? 




. -.m,^v. "^; l:"r '"•■^^•- ^^•^ '" ^-- - this 

and Manitoba fho r„e hod ^f'i,? ''' ^'^ ^^un^wi-k 
patent issued hv 211^1! '"^^IT'^'-^^t.on is by Inters 

«n^ of his Mi ste s r'f ^''•"*; *'" ^'•'^-" -' 

vinces. that is to sav N. v « "•^'"''^'- «f the pro- 
Island, ^^^UatJ^o..Tn\urZ^^ E^^«-^ 
and in the Vukon Tc"'riVnr !. ""'^ .^"^'-^'^ Columbia 
tion is by a ^yZj)^^^^:;^:'^ "^ --rpora- 
and articles of association « . " '"•"'no^andun. 
panics Act, thou. Hn Jl ;f f Z""'''" *'''' ^^'""^^^'^^ ^^m- 

The current ' "^ '•''^^'" ^^ ^'^"^^^ Patent. 

asmertS: ceroTfor,''' "^"■? ^"^' ^^^^~ 
tion. The two sy tems d^A'^ ^' "^ '"'^■'^^«"*^«' ^^"^d"- 
form but also fundarentalTrin '''''' ^'^ """-^^^ ^^ 
teet, as will be found hv"' ^■^''''''''' «^«tutory ef- 
enactment. The SporaZ^^^^^^ ^'" -^"'^ ^>'^'- «f 
patent corresponds nfo^ •^ompanies by letters 

ancientpracticeoftLeoni ,''"'^, '""'"^^'' to the 
of a body eorpora"rarr^v''''^'^'^^^^^''"'^^^tatus 

" corporation,'' wis "onfe™,"- ""' ^" ^^^'^^ words a 
companied usualh bv some f ''' "V^ '^'^''''^^ -- 
privilege bevond thos^ erZllT ^^ "^°°«Poly or 
The system'of regstratLn H by n^t^ral persons, 
panies Act had its TriJ^^ '" ""l'' ^^'' ^^"-'i«J> Com- 
«tock companies whSfat fi' st"w ''.' '' '^^"'^^^' -^'^-t- 
^ettJemeut on the ba s of i^ ' f "'"'"^^ ^'^^ ^««^^ «f 
out legal sanction but il Z^TfV' ""* ""^-^ ^itb- 
By a series of en'^tmeuL inlZVi^''? ^^ ^^'^ ^^-^• 
teentii century culmbat nt n ''* 'l^'^ °^ ^^^^ "^ne- 

these joint-stLk rr,f ^ *^'^ consolidation of I860 

troi o^f tbe'ctrrrr:rarf "'""^-^^- '- 

called the Registrar of Pol .^^^""^trative official 

conceded to li.em most of r"'?.' ?^ '^^^ ^^^^"^"3- 
tions. ""^"^ °^ tbe attributes of corpora- 

all -Sedt;^^ in this country are 

1 tea trom the old Companies Act of 


h. h 



tho Province of Canada befcre Confeclcration, whicli 
w.^sfrst passed in 18o4. Vftor ConMoralion this 
AH wa« rlcc,Knized as beinK' a Donunion statute and 
^milar Acts for tho incorporation of .^-"l^^^^^^^^^^ 
provincial ohj.cls were passed ---^^^^^ Y,%t « 
L i8r.ft Ontario in 1874, Manitoba in 187o, No\a 
SCO at fs 3 N^w Brnns^ick in l«H^\t'- ^orth West 
Territories in 188n, and Prince Edward Island in 1888 
The Dominion Act still conforms fairly closely to 
the original Act of 18G4; but some of the provincial 
\cts have been considerably amplilhMl by provisions 
iak'-n from the En.Hish Act. Lack of due aiscr.imn- 
Ition n some of these ad<litions has led to certani 
uomalies; but the distinctive, type has m every case 
Ln presJrvcl, though in'the Ontario Act an aUemp 
has been mad. to superimpose many of the featuies 
of the registration Acts. Saving' soirie exceptional 
features of the Ontario Act the follownif? character- 
istics are generally common to the letters patent Acts ^ 

(a) Incorporation of companies is a function of 
the executive branch of the government. 

(b) Tlie function of incorporating companies is a 
discretionary and not a ministerial function. 
(There are opinions contrary to as regards 
the Dominion Act. The test is whether a 
mandamus would lie. It may be that the Secre- 
tary of State is in this regard m a different 
position from the Lieutenant-Governor of a 
province but it is not cle^r. Down to 1902 the 
Dominion Act vested the incorporatmg power 
in the Govemor-in-Council and it seems doubt- 
ful whether the amendment of that year sulv 
stituting the Secretary of State was intended 
as a surrender of all the discretionary power 
of the Executive.) 

(c) Tho incorporating provisions are in terms ot 
positive authorization rather than of acquies- 
cence 'Tbev embodv a definite grant of power 


and not a more a<.(,,ii,.H<.onco iu the exerriso of 
foiporato capacity. 

aKunont th. company ,s left con.parativclv 
inee to order its own atTairs. 

(c) Tile internal atTairs i.f *i.« 

erne<J hv ^.l < ,, '" <'«'""l>"ny are irov. 
Zi • , ''-^-'^^'^ ' and its outward formal 
acts are also .>x})ressed by by-laws 

(f) Companjlively little supervision over the in- 
ternal at airs of the con.pany is exercised v 
th^e Courts. Changes in the powers, capital, 
etc., ot companies an- re-ulated bv the 
--Jjtn-e department which i^sue^Th^ltt!^: 

(a) The administration of i\,n \,.* • 

i^ 1 • .""^"'" "' I lie .\cts i.s commit'ted 

to an administrative official and to the Courts 

(b) rhe registration of companies is a minis 
te.-ial function and the operation of the let 
when Its requirements have been compHed 
with IS practically automatic. ^ 

(c) The incorporating provisions are in ternis of 

"S^^T"^''?? -^»-r ^han ofVosm^e 
autl ority, the prototype being the unincorpor- 
ated company or partnership 

^'^^ r^;forr1r"' '"^^'"''"-^ ^''^'^^^^^^ auditing 
^aboiate than m the ease of the letters patent 

(e) The internal affairs of the company are o-ov 
erned by -regulations" and its corpUt, Ic ,' 
exi^ressed in -resolutions " ""^P^^^^^' «^'t^ 

^^^ ^a3°'^'i ?" ^^'''' constitution, powers 
capital and internal arrangements geneTalv 
are under comparatively strict tutelage ,^er 
cised largely by the Courts. " 

= H«^« 



[vol-. 37 

The rec«.i judgimmt of tho Privy ^'l'""^';! ^" |^^ 
Honanza Creek MiniiiK Company case- establisluH 
^o her vi ally important .U.ti«ctions between eom- 
^anie neorpor'ated uxider letters patent and those 
"dev resist at ion systenvs. It was held .n that .ase 
that a eompanv incorporat..l by letters patent unde, 
f (m a«ies A.-t was like the old eonnnon 
i:;;\.ompanu.s eltablh^hed by Hoy«^ ^ -f ^^^^ 
being subjeet to the doctrine ot nit, a nns. 1. ons 
7uZw it wrus held that sueh a company was not m- 
1 i of Trrving on business beyond the provmom 
Into It' would appear from this decision tha 
in 1 e two •c,sp,H.ts of being free from the doctrine o 
Z^ re.s a!id being ve.ted with -h-a-pr^uncia 
;i.pacity, a com.mny incor,>orated by letters intent is 
in a position of superiority. 

In relation to Canadian Company law the general 
..uestion as between letters patent system and a regis - 
Sn system is attended with some high y interest- 
ng hLorical considerations. All the letters paten 
Acts were, as already stated, copied from the Act ot 
Ifunion Parliament passed in 1864. Preyious to 
hat time there had been in force in Canada a fom ot 
Wt copi^ from an Act of the State of New \ork, 
; ^m'idinglor a system of registration of a niemoran- 
Ci of association with the registrar o/^f^ ^ ^;^- 
local authority, a copy being transmitted to ttie f ro 
y nil Secretary. This type of A<^^.-«7^f ^^^J^ 
American Colonies after the reyolution. The revolu 
tr haying put an end to the royal prerogative, no 
other mS of incorporation had been found avail- 
able in tlVe States except by special legislation. It was 
to obviate the nece^ity of a special ^aet ^^v ^^ery^^- 
nanv that the system of registration had been de- 
S- and at the time of its first adoption m I»wer 
oLada in 1849 it was already in force « -me ^nty 
of the StAtes. It would seem, however, as if som< 
eLter^rSSg Cana^an legislator or draftsman had 

« [1916] A. C. 566. 





"«u.v fn„„ ||„. ,.„„„„„„ |a„ , , " i' "'""'",'"• (f^^K"'!,' 
'J<Jiborate ,lo.« rl , V . " "' "■"""■'""Wo for its 

«.d c.o„.,oiid„,od ■„ ,1,0 c'l :„ :t ' ■n86..''%'r^ 

not loss roniarkaWo tl,ot nonrlv «H tl,! „. ■ ' '" 

.rgn i^Clf"-'' ■■*»'«'j«tiou in England lad i? 

,-.a„oe, is":;;H:'itpi„i rs "' '""•"■""""' ""■ 

The charaotoristics above ni»'ntionod of fi.. 
tiye systems are not all inherent or es enti J 7'^"'" 
of them atallovonic «^ ili ^^'^sential, and some 

H-ell be separar^divli^ .'""'" **^.^* *^'^>^ ««"'d not 
it i« ^Jffi f ! ^ lt*gislation m this country Thus 

"OTupanv incoLfl !S^ C.>.pany Co,, ^ provincial 
lanj incorporated by registration could claim 


■■^ . 



i4 ■ 

H^^^HJJB »' 


tf ^9 

~^ V 9 

^V jtt. -X^H 




^ W^ 



[vol. 37 

extra-provincial capacity even if the provincia Act ex- 
pressly purported to confer such capacity. Tliere are 
certain features so closely associated with the respec- 
tive types of Act that th€ adoption of one or the other 
tvpe would tend to determine prima face at all events 
Home of the most imi>ortant principles of company law 
For this reason it is desirable to analyze the general 
question above proi>ounded and to break it up mto a 
number of particular questions, one of which is:- 
Should incorporation be hosed pritnarily n^on 
" the theory of the creation of an artificial person- 
nlity or npon the theory of an associatmi of 
individuals analogous to a partnersMpf 
The reasons for and against the respective theories 
are a little difficult to ana.lyze into definite counts. The 
emphasis in the question ought to be placed ui>on the 
word -primarily"; for doubtless incorporation must 
in every case involve the two ideas of an asscK^iation or 
partnership on the one hand-and of an artificial indi- 
vidual on +lie other. Some writers on company law 
display iiapatience at what they regard as the 
Suseness of the theory of artificial personality bu 
?he fact remains that a large part of the principles of 
corporation law in all systems ancient and modern, has 
been based upon the theory; and the only question ap- 
peL t« be whether it is desirable to recognize it 
Sy and frankly or to pi^serve as far as possible t u- 
analoffv of partnership or association. In tselt th( 
qufstfon w^^^^^^^^ viewpoint should be emphasized may 
appear to be of more academic than' practical import- 
ance Tbut from a slightly different viewpoint the same 
question may be vstated: — 

3 Should incorporation he hased primarily on an 

act of the Sovereign power or upon the contract 

of the incorporators? 

In this form a number of important questions are 

at once suggested which may be still further separ- 

ated : — 




attempt on the narf nf fT.l n • •'' ^'''^'''' ^S^*^ «" an 
Parliament to ho?d tL "t^^^^^^^tion in the Canadian 

tion it was announced hat In J "^"^'"^^ «^^^^^«- 
itseJf as acting in a mere, n.fn ""f "^-T^ 
"nder legal obH..a inn nf- ""«'«terial capacity and 
for any fawfu ^ec ^TZn^'Tj. "" ^^'^^^-^ 
corporators the quesiion is^L*''' ''"'^^^^^'"^ ^^ the in- 
5. Shall incorporation he n rinht i ■ , 

of person! „.a, 'Zalit ^'r/'S/""'' 
terred by Executive authority? "^ "' ""'- 

abases, a.,<i ,l,e 4S "n«M f '"« '•'""■*"'^ f"'' 
norate opera io^sTwt? °' "" """^'"^ "' ""- 
stated as Mlow"- ^''°°''" I"""*""" ""y 1» 

not^oX''"",.l!,r '"'""''■' ■"-* '--n view 

future deS;™i;r„f rs:st.t''™Tr ""' "■•' 

events n this ond in .♦! ^""J^". The course of 

'or t„e exl^^tatn':; ::jTr„I Sf * «™'""' 
authonty of various nl„s„. """"rol by government 

for instance ea^ul aS "^.SE.'r """"'^■•. - 
'-» of preference .,«k, .;a,e":[":«„s::rT:; 



[VOL. 37 


question at once arises : shall such control be exercised 
by the ordinary courts of justice or through a branch 
of the Executive. There is no question that the method 
of incorporation by letters patent lends ^tse f more 
readily to a system of supervision and control by the 
ExL^ive branch of the Government. The tendency 
has of late been to create tribunals of a quasi-executive 
character, like the Board of Railway Commissioners 
for the handling of administrative problems such as 
those presented in the field of company orgamzation 
Sr a question to be kept in view whether any such 
tribunal or tribunals should be established to exercise 
jurisdiction over corporate organization and opera- 

It is a result, not perhaps inevitable, but certainly 
natural, of the history and theory of incorporation by 
registration that companies so incorporated should be 
mTe repressed so to speak in tiie matter of capacity 
and freedom to act than companies ^cor^rated by 
charter. Under such cases as Ashhur.y v. Riche and 
the Sutton's Hospital* case a distinction is established 
between registered or, as they are called "statutory 
companies, on the one hand, and chartered companies 
on the other. Corporations ^^orporated by roya 
charter were held to have all the capacities of a natural 
person and not to be subject to the doctrine of ultra 
vires. As regards Canadian companies tbi« distmc-. 
tion is confirmed by the recent decision of the Privy 
Council in the Bonanza Creek Mining Company Case: 
The question for our consideration is :— 

7 Should a corporation he vested as far as possible 
' ivith the capacities of a natural person or should 

the doctrine of ultra vires be preserved^ 
The abrogation of tie doctrine of ultra vires would 
not mean that a company could legally do all the thmgs 
that a natural person can do. In the first place thei o 

» L. R. 7 n. L. 653. 

♦10 Co. 1. 

• [1916] A. C. 566. 

addition to this the doin^^^f f -"^^ '^^ "«t"^e- In 
«;ade illegal for the cor2aln'l^;." '^'^^^ «''"'<i be 
^Itra vires. In th^ ^'^P'^'^^^ion without makW them 

^r^vy Council cle'arJv distin^^rfi , *^' ^"^'•«' the 
company was capahl of doW « 1 '^t^"^^^" ^^at a 
power or rey,^ to do. Ind iuf ? ^^^^^ ^* ^^^ the 
a company is capable ot^^JtHn ! 1^"^^" W that 
^ A vital question w tHn affi ^ ^''?' ^°^ ^^^««- 
^hxch can be assumed at once is -"'''" ^"^^^^ to 

Before the recenf ^ ^ '"''"^'^^ ^«^«^^^i^^ 
fere was dou\[retht7c:^^- ^'^ ^"^>' ^^--il 
a province was inherenttycapa2 7 ^°«>^P«-ated by 
ations or even isolated tranSt '^"^^°^ «° «Pcr 
vmeial boundaries. Though f^^' ^"*'^^« the pro- 
entirely clear it may be c^Sid^J^*"^*^^^ i« not y^ 
yincial company, if ft is t^^^'^^^^ settled that a pro^ 

"''^f*^^ of receiving reco^it^L*^'" ^"«^' i« at least 
another jurisdiction thTtT/r ^' ^ '^^^^ration in 
that the company's onprff '^^ ^* ^^"°«t be urged 
ultra vires 3 thl XnyThot^^^^^^ P^^--- 
be unauthorized or even ?1 Wl f, *^'^,i»«>^ P«s«ibly 
a necessary link in the rZL T?J^ ^PP««r that 
^as the fact that the com'anv °/ l^'^" ^°^^«bips 
porated by letters pate7isTupd T'l'"" ^^« i°««r- 
Governor and was therXe t th ^ *^' ^^eutenant- 
company created by roy^ charter '^'"' P''^*'""° ^« « 

^ant^^^^^^^ of company law 

adopted,-some because Thlv In ^"'^^P^^ations is 



[vol.. 37 

llbered without regard to any particular order ot 
importance or otherwise:— 

9 Should the question of oucilary po..e,-. beded. 
mth exhaustively Inj the Act as m the Ontano 

We are familiar with the extended and difEusc 
enumerations ot corporate objoets that appear »m^ 
poration notices ^^X ,s°poSe Se risk of 

Sn ^oV ' °'i° "h- <^^^ I" *^ Z. 


:;,XZZc/eek Mining Commy C«^^^^''»*/£ 

"f TsTJf^ :ni;^n^:- ;^:^»" — " *r. 

^- ^^ Inm Patoer' P^c«lents. It is possible that 
direct from 1 &\vaexsr .^ ^ j^^.^^ 

this device alone had tbe <>tf ea ot yiP g 

-« +iia rlrvtriTie 01 ultiia tires «» icga.iv»o 
measure the doctrine u ^ ^^^^^ 

•"""'^rS fy "en tmenfjoufd'proUly he eon- 
powers by statuiorj eu. , „f registration is 

elusive of -l^f^-J^^,ltZLuX limit the 
adopted and If It ^I^^^Xm,„ „;„,, it might bo 
:l^^Z whXX device of the Ontario Aet 

-""X" :t""' e,,,... pro.-^ 

■ the holding of lands hy corporations? 

, :•■zvr^^ra^:rt::rnS^:^an'Jo 

rl^^edt boStndstiiout a license for the pur- 
%r::::srd%here are some importar^con- 
stitutional questions to consider both as regar 




Canada i'Mortl? ^f «„",^ H^^f'""',!,*";™'""'"' 
bnsiness l.i- reason of .n tl,„ • """'''<■ '" "I" «">' 

Mortmain Act.,. The jir e orir'"""' ''"""* "^'■"^ 
sidei-ably weakened ,Vh, . ^"Kges«on is con- 

gestion was • '"a hv^.7 , ''" '"♦"""te^ 'i'at the sng 

on.y and l^o C ded^a^d™^' "' "'"^'"'■°» 
there s.ipposed"- and he f, .1 ''™"*i»n on the ease 
indirectly th^ ti,e tm-il ^ '"^^''*' """<> "'■ '"^^ 
tntely, to Dreven » n "' ""'■'■ "»* '"» "We ahso- 

landl In'^tl clir«"*7T- ^"T'^'™'' "•-"» ""Wing • 
JnrisdicUon of »» Dotifnif 7 ^'r""""" '^""^ *e 
in lands was direetlvZ?« ^'^ "™'" '» deal 

it cannot be saW t^ L' , 'f T "f ''?' ^"'tained; bnt 
Jnrisdietion com" Z,'," '"l"* '''°«"'« ^'•"i-i"" 
gathered from re^ni d«i, !'„ '""i ''°"<' " ""^^ >><' 

jurisdiction over Mortmnfl . , "'" Provmcial 

Arf^ and without dtrmnatir'tht ^7"^' "'""' 
provincial jurisdiction sho,,ldh»' """.«*'' say,_the 
of a general Act de^gTitt U,e3' n '?.""' ^°™ 
by corporations generally Tf .^ ■" ''°'''"'« '■""• 
it would seem, (1) that the 1 ^"^ '■"""" "■•<' ™™ct 
law respeetin.; 1 e wZ "/"^''^''-^ of Provincial 

with greater e'ontnitnelf 1 "IS^'-, "'""''* ^''^'y 
Act and (o) that th 7r„>^,i„™':ff,f »" Mortmain 
With respect ,„ boldi^ng „ X ° ouM r""""/'* 
;<, with the B„mil„ j^risdS ottrThf:!,^ 

It be to s,wvlu n,nn. / ^^'"'"*' '''" ^^««^^ 

supennsh!^ ' '*'''* regulation and 

IJ]2§1>- J App. Gas. 00. 




[VOL. 37 

The present Dominion Act is a much easier Act for 
companies to "live under" than some of the provincial 
Acts, that is to say irregularities are not so severely 
checked and companies are left to a large extent the 
arbiters of their practice. It seems possible, for 
example, for a company to operate for an indefinite 
period without holding annual meetings without any 
serious risk of inconvenience. And Dominion com- 
panies are not required to make annual returns to their 

The question is not whether looseness is to be en- 
couraged. It is rather whether correct practice should 
be insisted upon and insured by adequate penalties for 
default. In order to be effective a penalty must neces- 
sarily be more or less onerous and the question is 
whether and to what extent it is advisable to prescribe 
company practice or whether and to what extent com- 
panies should be left to their own devices. 

A prime reason for strict supervision is in order 
to protect the public, that is to say those members of 
the public who are, or might be induced to be, share- 
holders of a company. Thus the conduct of com- 
panies whose stock is on the public market may un- 
doubtedly be a matter of public interest. But there 
is not the same reason for invoking legal supervision 
in the case of small private companies whose manage- 
ment is of no greater interest than a small partnership 
or an individual. A recognition of this difference 
has given rise to the distinction, in the Imperial Act, 
as also the Acts of some of the provinces, between 
"private" companies and "public" companies, the 
latter being subjected to much more stringent regula- 
tions than the former. The qupstion ought therefore 
to be considered : — 

12. Should there he any such distinction as that 
between "public" companies and "private" 

13. What, if any, annual returns shaU be required 
of companies, and from what companies shall 
such returns be required^ 


1917] «.„o. .. VK.K>,„.„ ,» COMP.NV LAW .,„ 

provincial compZy]Jrr!^^ ''^ ^^^*'- ^^^ ^^ "le 
some sort. ^ ' '^"^"'^^ «" «nn"al return of 

effected/ ''''''' ""^ ^^^' '"<^^rporation when 

-ten\i:n"toTpi;'LrTnern"^' I' ''^^^'^^ « -*- of 
now necessary rthecreT'^^^" *'"'* «^ ^ °«"^« i« 
of such a notici is LTn,l r\« « '^"'- ^^' '^^^'^ 
filed as for ^ustai:Mo thfusH't n'^"'"T *° ^^ 
now under the Dominion Aot«.n °'^- "^^ ^* ^« 

porated and a,- aiiv ^rr • ^^^^^^ may be incor- 

objectioncan be'nttS and^ir '"1r« ^^^«^« «"y 
made in its charter ifr^^thph ^"^ f ^^''ation is to be 
patent. """'^ ^^ ^'^^ supplementary letters 

a stllrenTorthT^U'!^ ^---- -quiring 
iarly laid before mejlws of l" T?^^ '^ ^' -«^" 
are also provisionTfot S • '^'f ^^^^^^^^^s ; and there 

certain genera]'"inft.S\tuf fh'"^ ^^^^ '^ 
capital and the position rvf ^; f *^® company's 
holders with reS T 1 ^'^^'' ^'^^ ^^^er share- 

theseprovislrLtof thrnro"'"'' /'^ ^^^^^ ^^ 
to afford a check upon possfbir''-'r ^'' P"''^^^^*^ i« 
tors and officers. Itl^e of 7fTT' ^^ ^''''- 
company law to orotppf ? f ,^® ''^'^^ concerns of 
the minority J'th^re^^^^^^^^^ ^^7 »>e in 

resolution from arMtrarv an/.°'^ ""^'^'"^^^ P^^'«>' «^ 
maiori^. An imprnr^trnXre^:^- ^^ ^^ 
15.% what means and to what extent IV z. 
respect should the actions of ^r^^^^^^^^^ 
trollahle by the «7i/i^^7,^; 7 ^^^ectors be con- 
them? ^ shareholders or a portion of 

One means of contrnl i*o +^ 



[VOL. 37 

holders, or two-third» of them, or three-fourtha of 
tliem, or oven the whole of them, and one phase of the 
question is to what classes of hy-laws or re,solutions 
this check should be applied. 

Ki. Should the compamj he governed hij "by-laws" 

or hi) "regulations"? 
There is no x>articular significance in these terras 
themselves but there is a good deal of difference be- 
tween the system of internal regulation under our 
letters patent Acts and that under the registration 
Acts. The theory under which the chartered com- 
panies operate is that each is an imperium in imperio, 
competent to make its own local laws or "by" laws in 
analog\' to the sovereign State itself. The analog)' is 
really that of a deyolution of sovereignty. It was 
formerly quite well understood for instance what it 
meant for a town or an institution to secure a "char- 
ter" from the Sovereign. The power to make by-laws 
and to act under seal were of the very essence of cor- 
porate status. It was really in contra-distinction to 
by-laws that the internal rules of joint stock companies 
were first termed "regulations"; because to have 
called them by-laws would have been to pretend a cor- 
porate status which joint-stock companies did not at 
first possess. It is not unusual now for companies 
under the Imperial Companies (Cpnsolidation) Act to 
claim in their regulations the power to make "By- 

There is considerable confusion and overlapping in 
the ])resent Imperial Act in the use of the terms 
" articles," " regulation," " resolution," " special 
resolution," etc., and whatever terms are used, there 
should be a clearer definition of their respective mean- 
ings and uses than there is at present under the regis- 
tration Acts. 

17. Should the Act provide a model set of hy-laivs 

or regulationsf 
The Imperial Act and the provincial registration 
Acts provide uniform sets of regulations which in 

"'eylllt;^^ - -^- an. to U.e ...l, 
companies incorporated underH.'/r''''^*"^''^ to all 
'Jov,ee has been adopted „ tl iW^''' '^ «''"'''«'• 
'>«rat,on.s without share capHal "*"''" '^"^ ^'' -- 
IS. Should a distinctiov h. 

formal acts rmde Zl " r"«'«'«^^ between 
-'« l^-nd, and .t/l,^:^ ^^^f -s l,.law., on the 
on the other? "^ '''^' ""^^ "^' resolution., 

'ilie use of a seal is onp nf n 
corporate activity but eonvenienl '""''"^'^^ "'^rks of 
ordinary transactions shouldhr ' ""T''' ^''^^ many 
a ion without the use o the seirT^'" V" 'I ^-P- 
of a corporation to a bill of pv j "' "'« '-iffnature 
note need not be under eal Tr^' ""' P''onnssory 
.and to what extent til „se jf tf' Tf""" ^^'^^her 
away with both in respect to /hi '^'^ '^""^^ ^^^ ^«n« 
acts and in respect to i?s internnl """^fany's outward 
be considered and determS.d ""^''^^'^ns ou^ht to 

^^-^^'I'^d the same Act cover all r, 

Pames such as mininn Z ""''^^ ""f ^'^W'- 

'l^r^^^VX^^^^ is important when 

The older plan JJThV. "^^ "^ draftsmanship, 
"'a- of eompanv r qu rin^r^'^'^ ^^^'^ ^«^ «ach 
newer plan worked out in tl e On r^' treatment. A 
'n one Act the seneral LJ r ^'''*' ^^^ ^'^ to embody 
and special pro'.S a,;ilSreto^ '' all eompant 
. 20. Should restraint 6e ' n! t ' ''"""' ^'^^'^^■^• 

Limtcd; is to render irdn^if/'f'^f^''^«« Cowpa„^ 

"-orporated under tL Dom-nio, p'^^'^^ ^ ^^"'Panv 

-«tram the alienation o^Xriu .Sf f^ '''' ^'^" 

•^^«»).23 0.L.R.544. ^° ^"^h a Way as to 



[VOL. 37 

exclude persons considered undesirable from bein^ 
shareholders. The reasoning of the decision would 
probably be applicable to some of the provincial Acts. 
The Ontario Act makes express provision allowing 
such restraints under certain conditions. 

The question of restraints upon alienation of shares 
is a phase of the question to what extent a company 
should be regarded as being in the nature of a part- 
nership. It is an elementarj' principle of partnership 
law that the death or retirement of a partner not only 
does not give any one else the right to come in as his- 
successor but ipso facto dissolves the partnership. It 
does not seem unreasonable that a company of the 
small ♦* private" type should be allowed to adopt rules 
under which persons ponsidered incompatible with the 
rest of the shareholders, might be excluded from be- 
coming shareholders. The argument against re- 
straints upon alienation of shares is that shares are a 
form of personal property and that a man should be 
able to sell what he owns. But the same could be said 
of an interest in a partnership. Perhaps in this as in 
other phases the distinction between private and public 
companies could be invoked. Indeed the definition of 
"private company" in the Imperial Act recognizes a 
restraint upon alienation as being one of the distin- 
guishing marks of a private company. 

21. Should there be a secondary authorization like 
the certificate for the commencement of busi- 

Under the Imperial Act and the provincial regis- 
tration Acts except in Nova Scotia incorporation, that 
is to say registration, merely authorizes the prelimin- 
ary organization to be effected. The real authority to 
commence business is conferred when the certificate 
to commence business is issued. Under the Letters 
Patent Acts the power to comjnc nee business is of the 
essence of the grant of incorporation. The Ontario 
Act has anomalously engrafted upon it the provisions 


Of the Imuerinl i«* * ^2.3 

"^^J^ """^^^ ^0 . ommence busi- 

'ra^ passed after th« T ^'*^^'^^ Act of Knirkn.! 
ff-r- Which rTal ''de^?"«^--ion in P:f^,' 
;eiating to fraud. It waTiff ". ^^'^^ »° the Jaw 
<^ompanies Act; and in kf '*T"^^ ^"^^^^ied in thi 
«f.^»«t the prapri^tVaft? IT "?^°^ -" '^e "ltd 

aWy both the Dominion aid the nrT"^ ^"^' P^««"»^- 
to require of their comoani J f Pf °^^°ces have a ri^ht 
to prescribe the ol7eTV' ^[' ^'^'^^tusesX^ 
provide penalties foTZLlt n\ P/««P«ctuses and 
Panies Act, for instance n } *^' ^"^^''io Com 

^om and requirements of'n^nT"? *" Prescribe Z 
only for Ontario compalfe« ??*"f ^ ^" ^"tario not 
companies. It is a question fo ^^-"^ ^«^ »o"^infon 
t ^s - -petent and rpedL??""'^''"'"*^^" ^^^^ far 
panics ^ct to go in thL rnl!? ^""^ ^ Provincial Com 
Question arises^ to 1)1^!*''/ ^"^ « ^^rrespondW 
2\ f P-spectuses A^p^iTnuf '''"° ^" *' « ^^ 
^ta.ute law on the subject *^''' '^ "^ Dominion 

^3- What, if any n ■ ■ 

' "«•), i< A. 0. 337. "''" ""•» 'hat 


SI » 



[VOL, 37 

124 — 

one for Canada, thou »>^'"^ ^ province, Manitoba, 
upon the subject and onb on. pn.v» ,^^ .^^^^^ ^^^ 

Uuving venlurod to deal ^^ /^^ f^^^^^ -Blue-Sky" 
i« a copy or adoption oii\o -^ ^^ ^^^^jean 

legislation in force ^" ««'^\f, ^i'^.T^en fully estab- 

HtatcB. ItH l''-«^^^f ^^,^.'^^: j "'u ^'tions arise a« to tbe 
li«hod and in Canada difficult cpest on ^^^^ ^^^^ ^^^ 

relative jurisdictions of the uonim 

vincos in the matter. ^ebf««i<rcs, 

,4.«/«o«/rf corporate ^7-f ^ I^V^^ ^ ^^. «"^ 
/,«Hd«, ;;re/er*'«ct^ stock, eti ., be rep 

if sn, iihefe? • 1 „ 

to the regirtrauon of ™":S7o„°ver, to be still 
branch of the siibjeot may >>« ^«f 'J 7^;„ J „, t„ the 
in its infancy. Many rf;';°"%7'„" option »ecu.-- 
relation between 'l'^''*'? ''"''°" "„ ^ ^t land, bilU of 
ities on the one hand and •'""X!?!" i ,i e aereement.* 
sale, chattel mortgages »»",,f ' Sons will 
and the like on the »»er And .^me q" j,^ 

""X above a!:e only some, o«,--^;{-'r:on. 
various degrees of ™l»/\»°;,;,*'^^ ^XUmmenac.! 
sidered in framing an ';; "'"'^^^.X .^ legal pro- 
for uniform adoption. It i» no "="" ^ ^ ,,,_ 

fesrion that sneh matters are f;«l»7'';;,^«'j° „, ,,v 

;™-;;g robet ° to influence the coarse o. 

!Qcri<5lation. ^ ,^„,. 


pose, and "^ ""'^J^'V^S t° tat may saggest thom- 
'XrfStndtare^ir'eonsideratlon and an mto,- 

mi] MEMO. „ l..V,roRM,TV rv ,.UM,.ANV tA»-. 1 •..-, 

(wS! i^L';':;:;'""- '," " '""""'"''■ "f -"■■".-.■nor- 

HISTORV „r.. IN,„„,.„„,,„„ CoMPAXlE.,. 

tills purpose it i, ,„.„.,s„n- lo triu-i. ,1 • '■ . 

In Exgi.axd. 

though not in England. ^ anada, 

With the beginning of Canal co,i.structi„n in Fno- 

appears to have been that anil" n ng '^ tlnu- 
^on of the Bridgewater Canal bv Hr7n ley n 7V " 
The movement was facilitated bv'the rapid exi en ion 
of railway construction in the first mrt f X 

paratuely recent years this method of incorporating 







companies has been largely employed; and for the for- 
mat^n of certain classes of corporations such as 
banks, railroad companies, insurance compani^ and 
the like, a special Act of the legislature is still the 
regular procedure. 

But the lineal predecessors of our present numer- 
ous trading and manufacturing companies were the 
. unincorporated companies which sprang up m connec- 
Uon with the commercial activity of the seventeen h 
century Charters from the Crown were too costly 
Td special Acts of Parliament too difficult to obtam. 
Trading associations bad, therefore to content them- 
selves to exist as mere partnerships For a time 
indeed rhey were absolutely prohibited by law. bo 
late as 1811, in Birmingham, members of an associa- 
^t^n t" raise'£20,Ono in small shares : ' ' f or the P-pose 
of buying corn, grmding the same, making ^read, and 
deaUng in or distributing flour or bread ' was indicted 
as a public nuisance." In spite of the discouragement 
of the law unincorporated companies continued to 
flourish. The law was reluctantly compeUed to recog- 
nize in such associations certain features distinguish- 
ing them from ordinary small partnerships These 
were (a) the transferability of the shares into which 
Their capital was divided; (b) the continued existence 
of tie association, notwithstanding the death or bank^ 
ruptcy of any of its menibers; and (c) the vesting of 
he management of the affairs of the association ma 
small body of -directors" to the exclusion of the rest 
of the members. The law, however, rigidly adhered to 
the rule that all the members of the association wei-e 
liable for all the debts and obligations of the associ- 

After the repeal of the -Bubble Act" in 1825, an 

Act was passed giving to associations complying with 

certain formalities the privilege of suing and being 

- sued in the name of a public officer. In 1844 another 

"The "Bubble Act," paBsed in 1819, was not repealed until 1825. 
'• R. V. Wchh and otherg, 14 East, 406. 


Parliampnf >» tt«^ ^^"arier or tor an Act of 

was anTSL ^"^ T""^ °^ *^««« Acts, however 

obZXrfir "* '" '"' f"i.-t e*t f«r;.^ 

an iowL plssedZS- " ""^ ■"" »''«' ^^^S that 
under thricrof 1844 .^ hf po-^P^i^^ incorporated 
^ration .JL1 ^X^ --f^o' »-" 

w:r 'sn~ srerbv"o """'" ■*«=«-« corporators! 

legislation ^WerSs t«L^ wr"™"^' t^"* "' 
the Company law ofCa'^faiYf^rBrUisTn' '"^ 
lish Acl wrr^'™' '"* Unit^^sTafe '"^h^7„'^: 

Act, 1908." Companies (Consolidated) 

In Canada. 

of registration similar to thfi nnde^Ihe Endfsl aZ 
A memorandum of assooinfmr, ,^„ • ^ngJisii Acts. 

»a adcnowl^J^ed'^rnTt^sZTtf Se" ctnt 

memoraTdnm a body c p^te T7\ ''*^'''« "■" 

in the consolidation^of 1859 and in ,1^ ''"' "'<"^"' 
by an Act" which rei-erted to »? ?^ ™ '"^^""^^ 

"See Lindley. 6th ed n f5 
"27 and 28 Victoria; c! ^. 


Company, its objects, »7™t ""^f P^^J^^Ve mod,. 

'"'under the dUtrltation of powers in the British 
S^ttTL^t" C tdt'l ™d;r the^«ns.«ction 
K: Parliament of Canada .;^ and was rev.sed and 
amended by that body in 1869. 

It would appear that after confederation the gov- 
ern' It of the province of Ont-io -d^^^^^^^^ 
inco.porate companies under the Act of 1864 of the 
Union Parliament which covered hoth Upper ana 
union rariiam Provincial Legislature even 

Lower Canada, and the *^^o^^J"^\ *, After some 
went so far as to pass an amending Act. ^tter som 
"Monstrance from the Dommion authorities a 
provincial Companies Act was Pf ««^ in 1874. ims 
Act while copied almost verbatim from the tederai 

it did not pVr^it'h i^ a^dC rtln Z ^e 

^'Dobie V. Temporaltties Board (1882), 7 App. Cas. 136. 
" 32-33 Vict c. 13. 

"»S.J'5n*d^-. .*..««.. <»» Sir '«'." *■ «"*>°-* 
to Mr. John Sanfield Macdonald. 
«>37 Vict. c. 35. 


companies with provincial obiects Thi. .t ^ , ■ 

vsions were introduced f™^m the EngHsrAT"'' ""■ 


Until the 15th of July ]87n +1.^ 
the district which is now ul\l company law of 

England as it stood at ,7e ^a" of th"'^ *^ ''^ ^^ 
Hudson's Bay Comnanv 9?i\r ^ ''^^'■^®'' °^ t^e 
date first men'tio^nTdX' Compa^^ ^^ i^^^ the 
. which had been passed in ST L ^^°^^^' 

Manitoba as re^ard^ nn^ • ' ^^ "^^ 'effective in 
than provincial'? and C^T ^^^^ "^''^^ts other 
Dominion- the laws of Fnl /T?* '^^^^' ^^ the 
within the inlZll^ft'^t^:^^^ 
as they existed on the 15th Julv i«7r * ""^ Canada" 
ative in Manitoba. TWlaw of pf ?' T^"^^^^ oper- 
ttiat date was also England as it stood on 

provinciarSX a n "^ "''''.^' ^"°^P«°^«« ^th 
in 1874; and n thp fon P?'^^^^^^^l statute" passed 

Act.res :?^ -thflntrS^^^^^^^^ St-Sc'^" 

amended from time tf tir/\ ^•^^' '^^^'^^ ««d 

authority fo? hTinonin ' r' '""f ''^ t^^ ^«"«ral 
provincial objects' r ''^"'^^^"° "^ ^°^P^°'^ with 

British Columbia. 

By proclamation of the Oovorrur ^ir t 
Douglas, dated December 10th ^Zo\u *^^™''' 

of England relating t^ioLt stoo'k ' ^^' '*'"'*"*^-^ 
^ joint-stock companies as thev 

^See now K. S. O. c. 178. 
^e^eSl?: ;;>.tS:. 1S?^>' ^ ^- «ep. 17; and see Art. in 

-38 Vict: c. 12 s l:r°\ m"^- ^V.'^- »»• "• 6. 
"38 Vict. c. 28 8 3 ®- *'• •'• '*<'• «• "• 

"See now K. S. M. '(ignj^ ^ 

VOL. xx.\vn. C.t.T.--» 


-I ■ 

" i 

130 THE CAKADUS lAW IIMK. [™1- ^7 

„„od on that day. were ^^-^^^^\%'^XmJ^, 
Colony of British Columbia. J" j^ » ^„i „, 

Ordinance '«'» •'"'^l^^^oVTvM.couver Wand 
the Colony, and on the ™'»»^ ^. ^ji^ance was 
with the mainland Colony m 1M9 *'» »' j^, ^y^ 

extended to '•;«J'^^f,h'';^.'g,shAcron862 should 

r'-'nT.f rBrml Cotnlto with certain modiflea- 
be in force in i^riusn v. statute was dis- 

tions On Jfy 20th JSth^^s^^^^^^^^ ^^ 

S:e ^St|^r C^pate^ Ac^. wMe. .ad 

been P^^'^^^th!! local statute" was passed provid- 

In 1878 anotner iuv^» „ ^^^ method 

ing a method of ineorporation apart ^^^ ^j 

of th* English ^«^,,^.%^^l".tffo/the 

1866, and 1890 a third J^;*^^ f^^ ^ct known as 

of local «o-P«^7^\ ^g^gP— thr^ metiiods of in- 

the Companies A«^' 1°;^^.^ ^^ji iggy when they were 

corporation ran side ^[^"^^ ^^JJ^^^ R^^i.ed Statutes of 
consolidated," and included m the K^^^ ^^^^^^. 

that year." The ^;^. ^f,.f Xr lonsolidation with 
dated in 1910|- and ^^ J^^^ f ^^^ i^eluded in the 
the amendments of that >ear wa 
Revised Statutes, 1911. ^ ^ Wegenast. 


» 32-33 Vict. c. 13. 

»41 Vict. c. 6. 

••53 Vict. c. 6. " 

" 60 Vict c. 2. 

"B. S. C. 1897 c. 44. 

••10 Ed. VII. ^■'^' ^ 

»«B. S. B. C. 1911, c. 39. 

1917] A lawyer's descent into hades. 131 


sucWh^rm^'t'" ^''°^' °^ ^^' ^^"^^^ °«"« possessed' 

visit o^ilnp7^.y''^^^ ^"'""^"^ «^ graphically the 
h s kl A \*'' *^* ^^^'^"^'^ '^«d«« «f Erebus to see 

^re^Ta^ th/^^^^ 7{''^ ''''''^y ^-« -Merest did 

1 regard the beautiful legend of Euripides, where n 

he ^eat tragic poet tells, in flowing numbers tie 

sacred devotion of Alcestis, who, dyifg fo^the sake 

of prolonging her husband's lifi was^escVed from 

^e Plutonic shore and restored to the light of day by 

Hercues; also the story of how Orpheus with the 

ravishing strains of his lyre had power to rl aJl hk 

Lethe, mere was something so weird in all these 
fanciful descripticas that they seized upon my imagin 
ation and haunted it like a nightmare. When in afw 

SeTot1.t?f^ T'^^f '''' ^' NapTs it beclm 
possible to gratify the wishes of my youth to attemnf 

the daring exploit of committing myselfl Charo^^s 
boat; of crossing the Stygian Lake; of wandering not 
m?ZhT' T^^^^^^Pl^-^tom, but Whin the wafis o 
C Jcvh^ 'f ^"^^'•°'^^^^' «*«°^ the rueful shores of 
Cocytus; of gazing upon fiery flowing Phlegethon and 

long ages ago was permitted to look upon. So full ' 
7Z th' ".^T'llT*"' '^''''^ y«" ''- hardfy wonde 

Jan^end ml V, '^'^""/'■"^ ""^ '^'^ ^^«t"des 
Z« nf T^ •^''"'' '° '^^^P' d"""^ the witching 

of^Lrvlll "^ T^^l'f ^'""'^y ^^P^«« ^th its wealth 
of marvellous beauty? For under all the bending 

tXthif h' " "'^ '^^' ' ^^"^ ^'^''^ '^ he com'a :^ 
wi«i this eharmmg City and its superb environs. 

An^it Z r°K ^'''" ^^' ^"^^^ i°t« «« aphorism. 
And it may be, because one is invited after seeing it 
to die, that here the vivid imagination of the aSts 

132 TBK CASADUN lAW T.ME8. (VOL. 37 

placed the gateway into Hades as well as the portals 

of Elysium. ^ at an early 

carriages were ordered for ^^J ^^'^ „,„„^ „„ 

honr in the morning, .^ft" « ™ j^^ „„rthem 

'f ""f't Bat* Niples Tthl di'reetion of the 
shore of the Bay oi i, J" . „„d beyond de- 

Grotto of Paus.Upo. The v^ew ^^J,^^ 
scnption. The eariy buu Vesuvius, and 

dows far down the w^^^^^^^^ -^ ^^ ^^ ^, 

mantling bay, shore, ^^"ff ' ^ the eye swept 

sheen of transporting «Pl«f r^^tf 'f buried Uercu- 

around the circling ^^y'CVdf beyond Castellamare 
lan«umandtheruinsofPoinpen,b^yona ^^.^^^^ 

and the orange g?:°^^%lf ^ore with its vineyards 
trace the dim out hhe o«.\^y ^"^\JX „to the distant 
and charming villas until it mel^e^ x 

horizon. Near tbe .^^i^^^^" :^^^^^^^^ separates the 
way, cut through the high ^7^^' ."^f, yirgil's tomb. 
Ba^f Naples from the Bay of B^^^^^^ ,^ ,,, 

This is the coi^e of vanta^^ ^^ .^^ marvellous 

Naples, «f^"^f^;^t matters little where we lie down 
beauty. I suppose ^J^^f^^ . ^^ t the soul yearns 
to sleep after ^^^J^'^:^:^,^,, Lpose ;-it may be 
for a spot of attractive au height, where the 

on some shady ^°^\^.°v^f, ^^^ Irgesfor some quiet 
whispering trees chant t^^^ X-X^rim the work-a- 
sylvan -treat, where natu^^^^^^^^^^ ,, 

day world. Bujymemi prom the lips of 

dyLg request o^i^ff tSe^^of"'' U^^^^ Nell,"-- 
many has escaped the ^^^^P^/^^thing that has love.l 
- When I die, put near ^^ ^ZoT^^v^^ys.^' Of all 
the light, and ^-^'^l^^'l^l' Xto^^ of the 

spots none <^- ^^'^li^^-r^^^^^ *^^ ^"'^ 

great Latin poet, althougn lai ^^^^^ g„ 

li his birth, as th-; over- ookm^ ^ „ 

well; the classic ^.^l^^ ^^.-Z^^ce of the charming 


Virgil plafe 111: en'^t^elrHadt ^Anlf '""^^ ''^ 
wonder when we oon.fl! •. "^"^ "^^ ^^^ *« 

rocked hy eaZaZet 17'' \'f^'''' ^^' «^«« 
escanwi f™ ^"^®^' ^**^''® subterranean heat 

subjected to greater ^cissSs '^7,""^,*'"™ '>'=*'' 
laid waste by'^arth^S td "Vertt ^^^^.^^Ul^^^^^ 

„rrt' '^™»'«- Lombards, Normans and Turks It 
ThL ,.'^'' «^""' ^P"'"' "' "-e Gentiles knded 

highly extolled by Horace S t U L^S "'" """' '" 


TseTMottlt ™Ttt^ r :.i™TL"'.rt 


Cocytns, oro. rcXr^wtTrs,tr o1 




I 5 





[VOL. 37 

liquid fire, before entering the abodes of the happy 
in the enchanting fields of Elysium beyond. As I 
gazed down the dark passage-way that led to these 
fabled regions, I appreciated in its full significance the 
well known line of Virgil : — 

"Facilis descensus Averni." 
And the scarcely less expressive one of Dante :— 
"All hope abandon, ye, who enter here." 

Lake Avernus presents every appearance of an 
extinct volcano. It is a mile and a iialf in circumfer- 
ence and two hundred and fifty feet deep. Its margin 
was once covered with a dense forest, and here Homer 
placed the abode of the Cimmerii shrouded in eternal 
gloom. They were said to live in grottoes, into which 
the light of the sun never penetrated and where per- 
petual darkness reigned. 

It is true I did not perform the initiatory rites pre- 
scribed by the Prophetess before commencing the 
descent. Nor did I see the sights which greeted the 
vision of the Trojan hero. Nor did I make my exit 
to earth through the ivory gate. This, however, I did 
see— At the entrance to the Grotto of the Cumaean 
Sibyl, the visitor is taken in charge by a guide and con- 
duct.^d down a steep, slippery incline, torch m hand. 
At the bottom spreads a ghastly sheet of water now 
made lurid by tho flickering torches. Here you mount 
the back of your guide, who, staff in hand, gropes his 
way with his burden to the opposite side. The guide, 
I suppose, vou may call, vhavon, minus the boat. 
There is pointed out tho spot, the cleft in the side of a 
rock, where the Sibyl had her seat, and from which 
she delivered her my»teiious oracles. Right glad was 
I to beat a hasty retreat to the upper world. Pur- 
suing our way and passing a spur of the jutting head- 
land there burst on my view in all its beauty the charm- 
ing Bay of Baiffi, once the fashionable watering place 
of Rome in the days of her Imperial splendour, when 


Augustus Caesar liere sought relief from the oares of 
columns Whit T ^'i u . ^^''^^''' scattered 

«.tabiii„ ztmi ^ir„/' 4uTf:: "' . "--- 

ou the folly of mere efrthly spiendluf, HZ"'"''^t7 
remams of the Temples of Mercury! Ven„fCr.„; 
Hereule,. A short distance from Baie ' l"k 

KlyrSr^''^ '" »-' -- '-'or'eracLX' 

within its dark and fm-ti^j" '^ ^'* '«"' P^'^d 
every cleftt ,ho LSd^wrT"''^- ^'''■» 


remotest idea whaM)i«!,fi,i-^^'^ ^'^''^^^ the 
sav if Zl ■ : ^*^®^ ^^^^ or wanted. I can't 

say It was an mterest ng tete-a tefp T I, ^ 

thought I was giving vent to inf^l! !, • ."PP""^ ^*^ 
surrounding obiectf If Lvi ! t^*^"''''^*'°° °f the 
him the moft stunid nf tK ''*• ^ '^"^^ ^ thought 
understand nureFnrS' ''"'/^ °^^°' ^^« ««»^^ not 
tinctTyenunS f ^^^^^^^ «-<J di- 

to suffocate ii this horr'ZZl' '"'.f ? °^^ ^^°^ "*>* 
effort for life Although fh! ' ^^''^^ ^°" desperate 
and as crooL If t^po ^^^^^^ ^-^ «« Erebus 

tician, I wrenched Ty hand frl h «/ ''"''^"^ ^^"- 
bolted back with miX Ta ■ '^ ^"^ ^^^P and 


a proiectiBg rock, and happUy atoo^t by a mir^»* 
^":"t"\ o" r;^to«MlrelXnl Speak I 
3irsr;.;„st.y pale wa, I, 7^-|;-X 
WAFP scarcely able to recognize me. 1 was me on^^ 
:„Twho had ventured into the g-tto I was plied 
with a number of questions.-such as- What ;n the 
;m \1 tV,« matter ? " "Did Pluto unchain Cerberus 
world 18 the mailer T ^^ become of 

andlethimloose^P^^^^ ,^, ,,,;esr' . 

;M^n't you t^nk yo^u wij have occasion to remen. 
ber your visit to HadesT" I gave no sign I^^^^^^ 
* vTonW in Naoles I had seen enough of tne nether 
to eoh^^^i^^^^^^^ i ^^ t^^^ j„y back 

fiMlce, but to imprecate the «»% J;^f "^^ „ „„rtid 

''°^' ": %trfl" -'t^'S-aetive and 
curiosity. Before, i na ^^ ^ 

f TTubUUnt" e'Ten's didTo. -em to have much 
T .S ™ BeiJ« somewhat refreshed by a bathe 

;:SroTBaf.T|a^ ^-t lUr Tth; 



Turn S^nf" h'PP''"' '^V*'^^"^ ^^ I««»»i«' ^e came 
m tull view of the regions of the blest, the delightful 

resting place of all who had passed the muddv and 

bitter waters of the Acheron. No earthlv spo'Uld 

have been more fitly chosen, commanding a fine vTew 

of the Bay on one side, and on the other look^L Z 

upon the waters of the Mediterranean Under an 

Italian sky, m the mellow light of that sunny day i^ 

wTr'tsS ZT ^r''^^- .^^« "^^^ thesfgrtnd 
Tshes oflh! H '^"^^'y-, The vaults in which the 
ashes of the dead were placed in urns are yet to be 

n min'd \f ""' TJi'*'^^ ^» *'«"' '^^ you will bea 
one of 11 k'^ r*'*''"** cremation in the«e times. In 

u^n whl^fheTr'*^ '*^^'*^ '''' "'*" ^^y »>« «««« 
upon Which the body was burned, the ashes boinir 

f™ fiel'lr*,'""" ?"•"""«' '" niche. On "t 

imperial palaces and lordly villas, the prolate 

H^on^nalte^r ''"^'"' *^^ «^*«^ ^^ ^'-^^fn^ 
cit,cs tenanted long ages ago by the elite of Rome's 

greatest and proudest families. Over all had swept 
the wasting storms of time, and this was wha 
7Zr Vt r;' '"^g^ifi^ence and gl™. The 
grandeur which had made Bai^ famous, throughout 
the Roman world, had passed like the baseless fabric 
of a vision, and here was the end of the whole matter 

caUere'd'ZT^r °' "f '' ^°™« «°^ ^^ - ""« 
scattered hke the leaves of autumn before the blast? 

Is this the sum total of man's highest earthly good 

toer'lbol r *':l °"/"^^ ""''^'''^^ ^horc^n^m 
lairer abode than the fanciful r. aons nf fK« u 

perMes and more beautiful than the' rhantin'/pla^t 

"Zr^u' '" T'^ ""^ ^^y ^"^ ^^^^ etern7rest in 
that still country ^here the hail-storms and fire 
showers do not reach, and the heaviest laden wavf^re; 
at length lays down his burden!" waytarei 





1;M TU» C»K»DUK law TIMK. t™'- ^ 

' Ute at m«ht we passed '"-"j'' '''„;«;°'': "'. 
Pausilipo. From its darkness and «'<»«• J , 

.ndden V ushered into the splendour of the im 

rC XriovBly in the heavens and . .- ddmg >. ^^ 

distance l*e so„e .-nd - ^ ,^' a.„,d the 

form of Vesuvius. «. .^^ throngmK 

circling shore. Oie »'«>''« »" ;„ into which all 

fTfalLT WUlfurs. sC I "ouW the quiet of 

of the day, wiser ar.i HnJcier it no, 

descent into Hades. ^^^^^ Auwakd. 

St. John, N.B. 




Enouhh Decibionh. 

There is no case reported in the number of [19171 
1 K. B. for January which requires notice here, but 
it may be mentioned that the report in Rex v. Case- 
ment* is contained in it witij a very extended report 
of the arguments and long judgments discussing the 
law of treason under the Treason Act, 1351, 25 Edw. 
3, stat. 5, c. 2, and subsequent statutes. In his judg- 
ment in the Court of Criminal Appeal (p. 142), the 
authority of Lord Coke having been called in question, 
Darling, J., does the very unusual thing of introducing 
a poetical citation, namely, the following words from 
Milton's Sonnet to Cyriack Skinner, where he alludes 
to Lord Coke, as one who — 

"On the Royal Bench 
Of Britiah Themis, with no mean applause, 
Pronounced, and In his volumes Uught our laws. 
Which others at their Bar too often wrench." 

There are no cases requiring notice in the Jauuurv 
lidT-ber of [1917] P. 

Life Assurance Policy — Assignment — Validity 
In the January, [1917] 1 Ch. we have first to notice 
In re Williams, Williams v. Ball,* which Lord Cozens- 
Hsrdy, M.R., calls "a rather curious case." Mr. 
Williams had a policy of insurance for £1,000 on his 
own life granted by the Mutual I-ife Insurance Co. of 
New York. Soon after taking it out he handed it to 

to monti. »«v «iv ^""''^""' '"ry""- "» that readers of It from month 
to month may rely on no case important for them to be atlviCi «f 

'^"imtZltL. Sf^""'"^ ^^'^ ^°«"«'' Workm/n^s ComJ^latl^n 

• [mV] 1 K. BBS " *'*"°'"' ""*"• *^*" category. 

* [1917] 1 Ch. 1. 


■Kf AM T^all and indorsed on the 
his housekeeper, Miss A. M. Uaii, ana 

policy itself this memorandum:— 
.. I authorise Ada Maud fal^ J^^rttfTW^^ec'^^^^^^^^ 
SL.r.ri:ie"Sra^J --- - ti.e o. this PoUc, 
out and this la my signature. 

To this Mr. WUUan. ^g.ed hU --- ^^J/;^; 
and gave the policy to MissJSall. i 

give/to the '-"'^-/S 'Thfcorrt of Appeal 
the premrams until his deatn. in ^ j f^ 

held the above "»'P"f ''™;?;^" »^' Smplete gift, 

poUey, 7 t'-,f!;7terabe Indite or U-'^ 
bemg either (1) a revoc Williams, or 

Tor« tXg :t? o'S'hirdel, « testamentary docn- 
"'Ttl'thJ Sifonnd Lord Co^ns-Hardy, says 

C<m,>ersio« of reoUy into personalty - Le^^J 
OpL .0 Tenant to purc^e r««« on _ K„..e .. , 

exercise optwn. l" r,f'"n Z,„ ,. Ben«e(Cthat 
illnstrates the principle "'/'""'^'J^ „j ,^„a, „„a<.r 
where notice has heen given by a lessee oi la , 

,,, terms of » ^,f t^rerrlt --iSHf the 

• 119171 1 Ch. 1«. 

• 1 Cox 167. 


insolvent, nor the fact that the trustees of the will of 
the vendor, he having also died, had exercised a right 

uL?;Th7>.''M'^ '^'^ ^^^ ^'^""'^ ««t"^l completion 
TnH X ^'J^^'^^^^^^^ agreement, undid tlio conversion, 
and forked a reconversion into realty. Eve, J., says 

The question naturally suggests itself how soon 
L.^ '!°*'*'"^ °^ exercising the option was given 
would the lessor-vendor have to die, under sueh cir- 
cumstances as the above, for the conversion into per- 
sonalty to operate. Surely if he had lived for fite 
years and then died, the property would have 
descended as realty aad not as personalty! 

WUl ~ Bequests to children ~ mrection in codicil 
to hnng tnto Hotchpot ''advances appearing in books 

If ZTi Zf ""*'['' ^'^ ^^>«^-' More and after date 
of codtctl The pomt decided by Neville, J., in In re 
Deprez Henrtques v. Deprez is a short but interesting 
one A testator by his will settled his residuarv 
estate upon trusts in equal thirds for his throe .ur- 
vivmg children, one of whom was a son. Bv a codicil 

bo^ok":?:' '"'. fr""' '' '""°^>' ^pp-^^°^ • '^ 

books of account to have been advanr-M b- \A to h\- 
«ou should be brought info hotchpot. 'Neville J 


V, .i^« that entries of advances made in the account 
u t WorP the dato of the codicil were incorporated 
books betore tne aai- ui •-" .^ ^ 

in the will, but that «»tn«^°'J'^° *'*^'^ „r as evUenee, 
not receivable '^^^^ ^^f^jV>' Xti^^lXcl^iel 
:rrtL1oXrrporrnc^:.'in'Se heaa note, 

(p. 29) :— 

this point m re Coifte.' ' 

Canadian Decisions." 

1 J . T,.ri<!f]irtion of Commissioner 


^01.^^6, NO.. 6) is largely o^;!^,^:^ 
r<^.X":.,'at'in%VaCtTrrtional decision 

ffthe Co\^t of Appeal in that two of the fonr judRes 
Perdu^and Haggart, JJ.A.), hold that the above 
*Sar Act is','«ra .ir.. in so far a, ,t purpor . 
to confer power, transoendmg those »f ^ f^f"';' 
ronrt iudee npon a provincial officer, called a Oom 
misstnor," Appointed by the Lientenant-Governor n 
Crancli am,o«Sh -o. 96 of the Federafon Act enact, 

•The Governor-General shall ^PP"*"^ J,\%^,"„*rce IxcS^ 

' 26 Man. 584. 


The other two judges did not consider it necessary 
to deal with the point. The importance in the public 
interest that those possessed of the jurisdiction proper 
to feupe^nor Court judges, whether so named or not 
should be appointed and paid by the Dominion Gov- 
eTument, so as to be as little as possible subservient, 
to local and provincial influences, is quite obvious; yet 
t must be admitted that there has been considerable 
laxity in applymg the provisions to that effect of the 
P ederatiou Act up to the present time, notwithstand- 
mg the late Sir John Thompson's famou. report as 
Minister of Justice, on the Quebec District mLs 
trates Act 1888. The Manitoba Puhlic Umt^sfct 
IZla^. " t ^^o---ioner shall be • a Court of 
61?) _ ' ' '^"''^'^ '^^'■'^' ^^ ^^Tdne, J.A. (p. 

Perdue „u,l Haggarf, JJ.A, the onlv judges of tl,e 
m holding such legislation to be ultra vires. Doubtless 

Pry;Cou"n l"" d "" ^""'^^ ^"-'^ " ™° "» th 
n^iZ T ' -^ """ ""y '"'P» '» «<"= U"- Wholesome 

i^d L'n '"■"J.'''"'" "' *>•<■ Federation Aot elelrTv 
«md finally vindicated. ^"arj> 

Habeas corpus-Enlisting during minority Tlie 

Co„?t hr™^' '^'^^' ''>'''''' ''' '''' Q"«bec Superior 
tZ i T iT""" ''^t*^^^^^'"^ eases of habeas corpus. 
The firs^ Fourmer v. Priced is one in which Sir 
*rancis-Xavier Lemieux, C.J., decides that habeas 
corpus does r^ot lie to annul the enlistment of a nHnor 
in the Canadian Expeditionarv Force. The minor in 
question was seventeen year, and ten monZ old 

"R. J. O. 60 ,S. C. 4.00 

ii! n 




n holds in the first place, that habeas 
Lemieux C.J hows ^^ secure the liberty of he 
corpus 18 a P/^^^J^. ' ^^ ^ procedure to determine 
individual, and that it is not a pro ^rdian- 

the validity of contracts, nor to try ngnts o g 
ship or rights of property, and— 

required In the Interests of the service. 

v,«T.f work of the contention of the 

?' M tat t ealZent of a soldier in the 
applicant that tne enusi incorporated 


of Fourteen. In «■« "t^er case Bo^ v. Boy M ^^^ 
kill, J., holds that the *£,;f *:J„p„nliherty, 
corpus being to '™°^^ f j^'j;';" nfor« his right 
f r'^Te c^^rX o/a i?nor dUhter of fourteen 
to h»™ "« «"^3 "Vith relatives of her own fre. 

rdl^ira:!^^^. ei^^. or J^^ other^se.. 

— niir£ini^v;:tr:;od.^feM^^^^^^ 

'.trrdl.;retlon, TJhiel appa-t,,^^--jn,- 

■ !i:^;»^rthfrssr::l:^i— ^-- 

not to return to the parent. ^ ^ ^ ^ 

" R. J. O. «fl S. C. 501. 




The Juridical Review for nor.n»«k^ 
with a long and 'earned Ir We on the ^L-r^r" 

ment by which a ".ercOwnf^rt^^o X". <, hn-"T' 
oomm.„dator~U,,i capital to a partner »' ''"""'-""^ 

proht, while, If tlio capital was lost, bv no fault nf tkl 
<=omme„datarius the c„,n,„endator boreThe loss) m 

f l.« ,-^ ^f'Siisn law had acquired some knowledee of 

ng hafarte fon "'^^^^^^ ^^'^^^^"^"^•^^ -'''- 
ng n,at and the following century considerable nro 

ner hips of hi 1 tJ." '""T""''^^ companies and part- 

«tock company; (.? its iSrdal and t^^ 
quences; (c) and the Bubble Act, 6 G.o. T c 18 and 
ts effect on the development of Company and Pa'i no" 
ship law. As to the Bubble Act ho say.s :- 

«tockTodetirtralt Horlrl?: 7'"^' '"!:'^ '* ^^^^ ^- J«*"^ 
safeguarded both the shaJehorrf , k ^'"^ ^* ''^^ ^^'"^ »°>^. 

against frauds and neS/en ° t h^ '"'^ '"''"""^ ^""^ ^l^^ Public 
What was passed was "rAeVwl^'c^/r^'l^? ""** "'auagement. 
"s an Act which deliberately made It difficult 

-.^ «ttc.;t;^^"c^«;,f';f;:;r;;::.r:^'" «- unit;.dstate;a^^^,[::^ ' 

in them. ^" whflt.vrr so^ms „,ost striking and important 

VOL XXXVII. C.L.T.— 10+ 



[VOL.. 37 

„o rule. « •" ">' %:,rf„„, to, »P«"«'^' *X .»'»<««" "■ 
a certain amount of capua 

available? nmrder of Mtir- 

,T^is is followed by ^^^/^^^[^^^^^^^^ in Scotland, 

doch Grant, the pedlar b>«"^f^^^^, ,,„ ^^ieli the 

in 1830, the «^^««^.f,"^f'^ J incidentally how one 
ninrderer was convicted an<i ^^,,^^^^ ^he 

Senneth Fraser ^f^« ^f ^^X^^^, Ltter of fart was 
medlar's pack would be, *^"\ f %^ ^hich Mr. Wm. 
not found. It is rather a tl^«^ ^f ^^i,, the title The 
RouSead, W.S., makes f /^\^^ /^^^'e most notice- 
Xtof iu ^--te;:trtrdMoncrei.inhis 
able thing m it are inc 
charge :— often proved ib«« 

SiS^y ot t---- -^tlnTconvTctir fo^- «-^-7^"^ 
a more direct proof P ^ ^^^^ ^^^^^.^^^. 

There follows an Article en^iUed^^ ^^^^^^^^ ^^^^^^ 

abot^t Dtt;orce, by "^'.^l^.y, University, but now a 

,or of Roman law at ^J^'^ Eg^Ttian Government^ 

egal adviser, we behove of the ^g^^^^^ ^^^ facility of 

h1 Walton discusses ^ - f^f , Jp^red with othe 
divorce in the ^ ni^e«,^^^\„ ^^a the causes of that 
euntno^ especidly Can-la^ nd ^the^ ^.^^ ,,essov 
freciuencv; also the ^dea ism c ^^^ p^^,, 

aleno of divorce ''f^'^'^^,, ,trivin,^ of the peop o 

sign of progr<^«« '^^r'^ titit on of the family, and K- 
to'^emould the whole in.t.t.t - ^^^ ^^^^^^^ 

make marriage itselt a !^'^'e. and who look foi 

. America than it has ^-"V'^.^f to the time when mav 
C^ard with contidenco and I ope ^.^^^^^ ^,,,ty, (as. 

^i„., ean be termmated at wtU t ^^^^^ ^^^^ ^,, th. 

^dVed, it could at o-.,^7^^;\f,onger than legal- I. 
o-vound that spiritual tu. are 


the course of his Article Mr. Walton observes with 
much force and some humour:— 

«.„/°' *^®. '*"'! *''''^*' *'"^''»« *" •''•« controversy none is to me 

mr'n"*.^''"'' '° """ """""^ '•«'"^" themselves, the mo t 
impassioned advocates of marriage dissoluble at will we 

men acknowledge with gratitude that to these strange' beings we 
•we most of the savour of living. But th« secret of their nu„ta! 
f^.7r T"""** '" ^•"''^ "^- '^'^ "» »* ^•°"'<i ^^^-^ hat he 

sro? :om:r ''■*'^^' ■" '^^ ^'^ ••^^"*^'"°" «^ '^* »»^^«-^"^ 

The fiumiber concludes with an Article on The 
Mtmstenal Function of Government, by W W Uio«s 
The^vaJt,^ of the Article would be verV much greater,' 
•t Mr. Lucas ha*i stated at the commoncemeut exactly 
what he was setting oat to establish, or to illustrate 
or at the end, what he considers that he has estab- 
lished, or illustrated. 

A good deal has been heard lately about there 
bemg too much of the lawyer in public life, and it is 
mterestmg to read in the Law Times (English) of 
December 2nd last, that upon Dr. Fisher, the Vice- 
Chancellor of the University of Sheffield, so contend- 

PnniH^''^ ^"°^'"' "" *°^'''^'" ^** '^'^ contention, said that nobody 
thf J^f f * ^r^^ jurlst-a man who had made a real study of 
o? anrplSr '''}'-'\-^ «"yth*»« but a most valuable raeJber 
T^rrl !?'"'• ^° ^^^ Parliament which assembled in 1404. 
(^,ln •"" .'""" "' '''^' '^^ recklessness of the House of 
Commons may have arisen from their not having had a single 
lawyer among them. Lord CHancellor Beaufort, in framing the 
writs of summon.. Illegally Inserted a prohibition that any ap- 

for !?• °n t'^'' ™^" °^ '^' '^^' should be elected. In retu™ 
for his slight our law books and historians have brandei th™ 

learned Parhament. The careers of Sir Edward Coke, Sergeant 
fndTl.^ r'"""''' °' ^"'■"^ Ha^rfMcke. Mansfield. Sfden 

Senlf n?',f " '"' *''■ ''"' °' '''''''' ""•* '" ^^'^ elucidation and 

Xe r. h ^ ^''^' **"*^'*°"'' "''*""'°»^ ^^«' "'''^•^y °f the subject 
in the l^th «.nury owe to lawyers . . Lord itfilners remark 
• • . IS abundantiy VftrtH«d in tke ear»»r* of BlacUs*""" ' 

S;.i:;"S- '^"""°"' ^"' '" -■* "^^^^ o^we^tiak;. 


It i, interestiBg to read - what the^-.f-™':J 
(EngliBh) of December f"*^ 'f ''^^L an Eng- 

?;nrrr^rtts;::n j- a„. the 

legal profession: — 

V . H •• he •^avB ■■ to hate the Jn- 

"l have Uv*d ions «'»°"^; *''i ^'ead mea*' House.' When I 

justice of It. When I ^",f ""\ ,J„uhment that ' Bleak House' 

lame Into the law I found to „, -tonls^^^^ ^^^ ^N J'fonI 

TaJte^o; the hest l^^ our ^^^^^-^^^ c::T:J1X^ 
Tee in the middle of the war Sir Edwart ^^^^^^^^ ^^^^_gj^ 

day after day In pleading the ^""""^l^^^^^ ^^jg intellect over a 
Edward Carson of all men . • ^ ^^^y. and nothing at all 
Bordld story that mattered UWe to «iy^ ^^^^^^^ about the saxne 
to the community. . • , ^"'^^-was concerned with whether 
rnVL^^cTk^JivTu; r^catrpmar In the .oup." 

1 f Mr r>ndd's complaints: now let US see 

Enough of Mr D^dd ^ ««°g .^ interesting to see 

what remedies he sugseBts. n ^^„ 

r h^ ':fth?iyar;rf^^^^^^^^^^^^^^ JsTentiaLaUhougli 
branches of the legal pr Macaulay's 

as every law student ^f the t> pe ot .^^ ^^^^^^^ 

schoolboy, knows they h-^ be-^ ^P ^^^ ^^^^ 

number of causes ot action. 

- But, perhaps, the most ^^^:i jS 
appears to be the following:- 

..M to facts or law In ^^^^^^ ^^^^^ 
the privacy of the M-^tf b roo^-U\ ^e^^^,^ ^^ ^^^^^^ 1, 
citors b for« him. and In nine cases o ^^^^^^ accept as 

be able to arrive at a *««*«*°^ .'^^^^at Jls mode of administering 
correct. It Is by no ^'^^f JJ^^^^tie n^oin^s of solicitors, a. the 
Justice would seriously '^;f*°*'';_jjl increased if litigants could 
volume o; litigation would be greatly mc 

tact, suect: '"o o^tenl.ttdrhlTff" ".' ^""^."-"^ 
in the more rerno^ p.rt.~(?r„.:t'''' "*""""'*■ 

Williams, ox-Lord J„2o,lta<.f-!'"" '"'"^'""' 
"By the way Mr 1^ *° ''®''**'" ^^^ds: 

hi. death, <.iven J v.. r h ' ^' '•'^'"^ *^°^« ^^^^re 
were fast n! d Wette .fd°o^ ''■'} '''' '' t^« P-^e« 

pages were iv, , t '^f "^ ' .^"*^°^' t^^* the 
i «*:». were «,„ i ^ be opened unti after his dpnth 

V s„,io!t„„ lttit;^%TL^.-ri,rT:s^ 



• A- „i fMr necembor 0th contains an Arttcle 
same iM-riodieal tor ^.^^^y^.^; ,,^„^^ HVonp 0/ 

V. 3/orm.' m f > ^« P^^ ;;, ^ and citchin« hold of 
son in ront of ^^"^ ?"™j;^^^^ defendant's shop, ca„s- 
the projectmg rods outside m^ ^^ ^^^^ ^^ ,^, 

i„g the canvas o l^l^^^X]^^^,,^^,,^ to the writer, 
might expect, the P'^f ^*"';"' ' _ope^. ratio decidendi m 
who is anonymous, show the^roper 

such eases to be as t«"°^«j ,„,,„,,enc« i» to 

•A person of common 7;^,^"'^,^ be attributed a kn- wlcdge 
be flrst taken a. a model. J° /""J 1 pby.lcal conditions, and of 
of the history of the <="«'/'^^^_7tJ^, J, the persons frequenting 
the habits, capacities, and P^P*"';^",,, determined whether such 
the place. And. thereupon, t ^"^° J^ °^ ^^at there was Ukell- 
a person would, or would °°t' J^^^* /^.^^rt. or would not. have con- 
t^ of some injury h^PP*'"*"^',^.!.* ordinary precautions to pre- 
STred it to be his plain duty « ^^^fj -ff,,^,ent a. did occur In 

r iarVcXTsirinde? consideration.. 

The issue of the La. — /,;^;;1^^:. /.rbi^^et 
cember 16th contams, under \^«^f^^;X disregarded, 
a very interesting, and not to ]>« '^^^ ;'>(j^^^t ^^itain 
eomplrison between -ent^^^^^^^^^^^ '^^ Zleni Rom. 
and the evolution of the i»^\"""% .^^i^ate, to the 

•The new War Council is practically » P^^^^ „ssolve both 
ment. and His Majesty in»f/- " ^//^e do not suggest that this 
Souses for the duration of the ^^^^ ^ ^^ ^^^e. But so many 
18 likely to be done. We hope " '^ " ", ..-^^tg and liberties have 
unlxicted changes in our constitutional rights ^^^ ^^^^ ^^^^ 

UkeTplace In the stress of two ^"* * f^^^ ^^^^ot Impossible. In 
Svo^Son of the kind we hav^^^'Jf ::J,,;; j, the natural hero 
times of national danger '^^^''l^^^^^^. and unless Parliamenl 
to whom men turn ^"^.^ J^^^f „, its traditional prestige and 
looks closely t«t^/,""^"'Sually drifting into Impotence, fol- 
K'uP Ta C^wtuansLition. For in England, as In 

. (1915). L. J. K.B. 269.1435. 





Tlic IrLth Law Tinit's for n,w.,. (i«i 
by son,,, rccont ™...,, „„ Accid^,,!, ,„„sed b,j K« 

wceniber '2nd, contaiu.s an Article bv Thomas B 
Gay, o B,<.hmo,„l, Va., disru.,»iuK -Amerioan d»"isio„,' 
upon the som«-lmt stranRo «,,.l of (bf/C™ "/ 

«ua^';s;T:„f-;„^!?;:;r.K-»r.rrt- '"''■ 

offieia,«, and .hid,, in tbo ri^i.t -larandatlrrlrbt 
time, IS much to bo admired is wpII iiin./ I 7 u 

dress to the Tro,«eu La»;y/./-,, Association, he under- 
took to give a little good advice to the ^air practi 
' rafa : '" "7>r"'"^''' '^«>-^ oux^o„tom,rar ; 

as follows:- '' ' '" ^''^^''' ^'''"''^^^ ^^'-e 

much; dont try to look SandsoL/' '"■'' """'' '^'^ ^°° 

WeJl may Zoir Notes ask— 

'Is it any wonder that the vlai<i nt ,..-o»i, u 
upon him? It should be snfflp?J* ^^'^ ''^''® ^^^"^ emptied 

reference to " P n^Pon^ shoSnirrif *.° '"^ ''^^^ the, judge's 
K pong Shows him to be hopelessly out of date. 


, 9 



1^ 1^ 


IS . 

IM 13.2 



■ 4.0 



^K 1653 Eosl Main SIreel 

^jS Rochester. New York U609 USA 

^S (716) 482 - 0300 - Phone 

SSS (716) 288 - 5989 - Fox 



The same issue contams a ve '"-^^^fj i, 
Walter F. Meier, of Seattle, Wash., on „ 

M„icipol Zee 0"'"««;;-%,=^^ae&*ais't"cts, pro- 
,,tablisiimcnt aod growth of ^^^^ eonuuercial 


any highway to be a residential street. 

T n^vipw for November— Decein- 

Tbe Amencan Ifll^'ll'l{^^Xe naturally turn 

.b(.r pontains »« ^^ '*''',>"„. .„rf Luii^t/ers, by James 

.vith interest, on ^/'^'^'^^^^^X^'^; gather, has had 

Harris Vickery of London ^^«: J^J^^ tions of 

fifteen years' ^^P^-f [^^^ j .t^^ Germany. We 
private international ^^AQe^^^n -efficiency" has 
soon see that the ^«^«^^^,^^^^Xe administration of 
produced very P^S y, yr!^nnical, official-ridden 
law and oustice. ^^^'^f P' 'L as we might expect, 
the whole system appearsj^o be, 

-S'J:p'-..I^''-.;- ;~"r-yersare 
„„d whereas ^^^-^"^J^ 'eta stian. fthen the 

torial:— jter -have convinced 

•Long years of observation, says our ^m^^^^ especially by 

plausible Uar.' 

Next we read— German pleading 

•The first impression one g^^^/JJXg Address to the Court. 

,, that'u is tue report of -^J^^JC argument and Innucj^^o^ 

It .111 usually f« f "jf .SJfTand imputations, and of other 

rXrsorafranrfertile imagination.. 




We noto a useful word of waruiny to those who 
may have to litij^ate in ({ennany, that a hiwver there 
is not entitled ex officio to ajjpear and act on l>ehalf of 
a client in any jitij^ation unless he produces to the 
Court a special power of attorney, (piite different 
from the ordinary Enylisli "Letters of .Mtmney," 
and known as a Prozcss roll mart, or "authority to 

Other tArticIes are Some licinrdics for Judicial 
Recall, by Thomas (i. Frost, American Lair and the 
Desuetudo, i.e., the right to plead tliat a law, or statute. 
or custom having the elTect of law, has become obso- 
lete, by Ap[)elt()n Morgan, who quotes an interesting 
account from the Memoranda of a Residence at the 
Court of London, by Richard Lush, Fnited States 
Minister to the Court of St. James, of what took place 
in the Court of King's Bench on April 16th, 1818, on 
the argument in Ashford v. Thornton, when Tlutrnton 
claimed trial by battle, which jtarliament had omitted 
to abolish, but did so the folhnving year. 'There is 
mucli that is interesting, also, about "benefit of 
clergy." Then there are Articles in this well-packed 
number, on Police Pouer: Proper and Improper Mean- 
ings, by Ti. Dee Mallonee; on The Basic Principle of 
the American Constitution, riz., that all men are en- 
dowed by inalienable rights to life, liberty and the 
pursuit of hai)piness, by Oliver H. Dean, and on 
Federal Poorer of Lefjislation as to the T)erelop)uent 
of Water Power, by Roger Howell; while the ever- 
interesting "Docket" comments at length on Presi- 
dent Wilson and his late campaign. i)i'onouncing his 
"neutral in thought," "too proud to tight," and " not 
any concern of ours who brought on the great war," 
as 'platitudes utterly abhorrent to a self-respecting 
citizen.' It also contains many cjuaint and witty say- 
ings of Richard Peters, United States judge for the 
Pennsylvania District from 1792 to 1828. The same 
number also contains a long review of Mr. Justice 

VOL. XXXVII. C.L.T. — lOrt 

»-■' ■■in'; W 


Riddell's 'interesting historical study' on The Legal 
Profession in Upper Canada m its Early Periods. 

In the Michigan Law Review for December we find 
a long and unusually painstaking Article by Harold 
M Bowman of Boston, upon Martial Law m England, 
who discusses very thoroughly what the common law, 
and the prerogative as part of the common law, ad- 
mH in respecfof overriding private rights of property 
Td personal freedom on occasions when the safety of 
the country is threatened with invasion. Admirable 
notes support the text. Tlie main purpose, however 
appears to be to establish that in the Deenceof the 
TZacIs which have been e-ted f -, th^ p^^^^^ 
sent war. Parliament has broken with the traditions 
of th? Constitution of Great Britain and so has 
Changed it; for that the necessity which would alone 
iustify under the prerogative or common right like 
action by the Executive or by individuals as is au h- 
or zed by that legislation, did not exist; and Parlia- 
ment hitherto has never in England, or perhaps out 
Ti , ^lere the Constitution extends, granted com 
parable authority to the executive or assumed it itself 
However Mr. Bowman admits the wisdom of the 
fouTse taken by Parliament, and that it has met with 
popular acceptance, and that— 

L„.. „,artu> .a. '»; «s„'xr«;/p"Lr.J«u"^. 

Courts have been in general operation. 

This is followed bv Mr. John M. Zane, of Chicago 
who completes his treatment of the Attaint commenced 
in the November number. He treats the suboect with 
a luciditv and precision very welcome to the practical 
"and not always found in such d----- 
How the attainting of juries passed away and was 
succeeded by motions for new trials, as Dunes lost 
heir character as witnesses, and were no longer sworn 
dZe veritatem, but to a true verdict And according 
to the evidence, is very clearly shewn. Mr. Zane is 



^^^^ous BusheU's case- ^Z\hT \«"^'^«n '" the 
from hi.s Ion, and 72^1'; ^ii;:'^^^^^^ "--^ 

he Jury; and. second, after tt vSlcth" '"°"^^ ~"*'-°' °^-'- 

;. by entering the proper vert let Indlhn "".^ ''°^"'' *° "^^^^ct 

with power m the Appellate Coirt to V . """^'"^ *"« HtlRatlon. 

niake the proper Judgment In ^hrcase • ' ''' ™""^ «"'» t° 

-^s to this, howevpr fho i- 

K-ts ftself, whVnoT, ; i,e'veXTl';'" ■"""""'>■ -»^- 
gether? ' "" """J' «■'"> jury trial alto- 

Articles by nieXTs If th^Pr.^T, T*"""'^ "'■■- 
Graham 0. WoodwaM „ '\^''«<'«'P'"a Bar, m^., bv 

'• Interview with Clients'' n! r ''^'"""y- ""1> an 
nested by the rece ' ease J T ""'"'"'■'' '^'^'"'' ^°«- 
Vniversity of Pen !,"„ t ^'"'""' '■■ '-oates': the 
with Articles oTth'.iT'' "'" '^'"""'' f" January 
Ernst Freund ■ t e ^w '""?''" f'"' "f Statute., XI ' 

Bristol, vl, er„tli, •■,'?"■ H''"''y of 
>vith Article,; on Oft „„T ,1"? '"' December, 
Ihe Resulting LeaSL'"f, -'''fP'ooce, and Some of 
of the Yale VnhZfityLa^%"{ "f ^"'" ^- Sorbin' 




[vol- ;{7 

of tlM. \.'w York Bar; and Th. Davgnnus M'^''';:"\ 

ouue, 01 u Horaek of the University of Iowa 

or aseut'), b> H. C . Hoia<^^ ) ^^^.^^^.^ ^^ School; we regret ^» '-^^^^^f .."^^^^ \rticles; the 
longer notice ot"^ the --^^trnfar w Hh h'fe,- alia) 

a long Article by H l^' ««^^^^^ j,,,,ira» Tow- 

on The InMncv of Manx <^ '* ;? / ,^ (Roehes- 

,titutional Develop,>,enf; Ca.r ''' f^^^ ;;;'(, i,ies on 
ter, N.Y.), with its nsiial ^to-^J.^Sl- ^^ ^^^ 
interesting subjects, and a^^?^^^ ^"^^J^ If Woodstock. 
• His Honour T.M. Jones Probal^.^^^^^^^ ^^^ 


States, and British dominions. 





To the Editor, 

Canadian Law Times. 
Sib, — 

LixcoLx's Inn, 

19 Jan., 1917. 

Imperial CounciroTcoml '' ^^heiov. the British 

menting on the palXote^M^V^^^ ^" ^°- 

to me views that I dn i i^ ^liannon attributes 

shews. My sugLstion of < ' "' *'" ^""^'-^^'^^ ^^self 
ute to be ODerfnvp r u^^''^"^ ^^" ^"^I>^''al -stat- 
\f,. Qi> ^P®r«tive throughout the emnirp" f« 
Mr. Shannon's description of \i J ^ ""*'' "'^ 
any "self-governing bodv - fn « ~. ?^'^- "^^ ^^^"^^« 
its Powers''-Mr |ha„nnn ''""Y^^^'h' surrender 
contrary, I exi^esslv nn^T^' ^""'^^ ^^^^°- «" the 
legislati'^'n was on ' to b. ^'^/J'^^*. ^^^^^ I-Perial 
previouslv obtained of th! !T^"^ ""'^^ *^^ «««^°t, 
The enactment of a s n 'l! 1':^^''"^"^ ^^™^"^«"-^' 
«fty would be mereh Ttatfe" o'f"'*'^' °' ^^^>> 
measure qf financial inflif^ / ^ machmery as a 
The framing of XdrSSr-S"?^ '^' ^^«°''°^>- 
in the eonclSding wordfof 7p n«^^ ''"'"'^ ^^"^^ ^e- 
Shannon--e matter If ^^^P^.^^^^^ quoted by Mr. 

ferent parts ^Ahe^^^i^^^^^^^^ '^^"^^ '^' ^^- 

I am, sir, t^c, 

James Edward Hogo. 

f ;: 


«» 1 t 



[VOL. 37 


Toronto, Camven d Co. Ltd.. '■""• ^f- 

This i, an cxccllont little boolc; tlic pity o£ it is that 
i, iJ rmtfe It certainly seerns to -X '"t,; ^en v 


^- ernd' ra!:^,e i. rllue.ant to »«' '« e«a 

itj^pJeTc^ that -'There ,„ay have been 
atime i/the tar past when a "•»°J- ■'.° ,t, 
Unguishable from an anthropoid »?<'•''»»"«* \'„ 7, 
reason for now delining a man m such wise as to in 

elude an ape.' 

CJevelond Press, ]9ia: Pp. i''T- 

This book after a »l'°rt introduction on Conrt 
o 4 o ..r.A basic loaal prnciiHcs m the united 

inir to medical and surgical malpractice, opl tlialmic 
ani ar^ egislation, and, finally, the laws relatmg o 
rdlcal' and snrgical malpractice, '» "« *°™ ^.^ ; 
tries It is a book the existence of which lawyer 
sSd bear in mind in case they rnn np agamst ma - 
?er "involving these subjects; and is an example ot an 




«>„ than il i, "''' '"^ "''»'' ''''» "'"if 

Empire,. and to Koven/ 'V ' T"^'^ ^'^^'^^•^ «f tl.o 

'•ave the power to ev^ ta ' V"' "?' ^"^ ^'^'^'" t^ 
«"t he says his n ind i^' stMl f ^"' "1*'^'°^^ ^^^fence. 
and admits there are 'rave dX".?" '^-^ ^""^" '««"««' 
to taxation and to the non set ^^'''- ''' ''^^'^ ^^^h 
Empire. Two 'xce Lnt no ?"?'■" '"^' ^'^'^' ^^ ^he 
^here he says- ''^'"^' ^'^" ^"ake.s. One is 

BrltlsrESre Zn Tj.l f™ ^'^^^ that no one part of the 
---- ^ -e -et;e:t?\Se^-ee. ^„ ^j,.,^^^ 

The other is wJiere he says- 

'The union of the RHtid J7< 
"P various centres of strength ^^^? ^' ^^*- ««sured by buildin. 

Sr^fee'". '^ ^n<^eSSrrd Ur^f^crrr^'^^^ 

l^", . ^' *^ "°'n& to cut Itself off ^^"^'^^ freedom. No state 

"ood Of other free states.' "" '™" '"e supporting brother: 

We liave also received .- 

International Review «/ ^ 
«o«.e.- Printing Om oHLtsTLlT'''''''^''^ ^ '^«-'«*-. "i/« 

atiou in various coimtries! '"-"P^^^^'"" and assoei- 

.If! r 

! ' 





.i«.. rnu» in the United StateM 
mge,i 0/ workmen's ^^^^^"•/''JJ.J'rpiremerU. Workmen'. 

- ^:^ruvrr^ i^- -^^ >- -- -- 

7„.c.ti»a«ion o/ P'^'^'f^'^'JlTZalYcar ending March SUt. 
Inves:ioation Act. ^^^y- '»;: IJ^^J^n .• o«««"; King' Printer: 
1916. printed by order of Parliament 


^ensovBhip, under date Jamiavy IHh, 1917. 

SS'i: Port'of ^aIi.o in Briti h CCnmbia a 
pnblic haroour. 

ThP Bri(«fc Columbia Gazette for January 11th, 
centos a prclamation postponing the of 
fte rgislatWe Assembly to Februarj- 22nd. 






li's Albert Duelos k" i • »■ .1 
Al>v„.„r, JJ„H,« and Jia'nl Vo,,; ,,,, '°, '"■'", "^ 

"'""-"'"■1 a .'...1^0 of ,i„. s„p, ''";,, I'';/-;?" 

province of Qii(.l„>,.. ' ' '"""'^t of tlie 

John Arthur (jrierson, barrister of Weymouth 
>J.K has been apjm.nted County Court .JudLrlfn. /. 

Ma^lTrall- L'^tllfcUv oT rT ""'T^^' « ^"^•- 
eharge of the^wclL'n' L^^^'^^^ :^^ ^-' 
<'on.e up in the city police Court ''"'''^''^ 

The-tollowing lawyers have been created Kin^'. 
stronir W IT" ni.- . •^ai^ques, Hiderar N. Arm- 

-ovo'l^d itr^S;. '"S;.t '''■""■■■'"^^'' '-' 

'heir c.|ie„,« „,., Sg a "o fo "l ''"™™™'"'.*° 
service thev will n^t . ^d 'Jiion act ve 

tiesoea^e^Euro ;^?r:^:S^""^'^^r^ 
press of business in Europ; l' fi^^ J'"^.*" "^^ 
its time to the prosecuZ o H , •' ^'^"^'"^ «" 
history. Tweiv. ,pn "1 , ^'^ '"^'^^''t ^^.s. i„ 
the firm are now in kik?" ''"'^ '^^" ^«^'-t.d .Uh 

Major Newton Afanlv Yonno- ^f n 
ihn T> ii -^uttiiij lounsr, of Rarrie f^UoA fr. 

flic -bar on <)u» isfi^ ,,i<^ j r "iiif, icine<i to 

second bat io of Y ief ii?! ""^^ T' ^'^""^^^ «• "^^ 
ru. ot ipres, will now return to the trenches. 



i f»' 

.^l*-|. ■IH';! 

;? ■ -i » 

t « 

-ft - 


[vol- 37 

' M l,„ti,.,. K S. MarWuna", "f H'e Mo"*'-"!'' 
S„,^rio ■ r, has .«.,... appoint.,. U-P-'y •-"<'«" '" 

,.„„ee.Co,.po.a. Cyril A- M"-';- ,l:"r'L l^ 
;';!t>'rt ..K «« a. S.™..a., (..nuaay. and 
employwl on tlu' twwhini- staff. 

Association:— jan. lUh, 1S17. 

« .V.O Trustees of the HamlUon La* 
-The annual moling of ^he ^Trustees ^^^ ^^^ ^^ 

Association was h*ld on .^anua^y 9th. ^iJ^^ot the 1. -. Mr. 

' elected President °'J'''J"'^'^^ZtKT.l^^ elected v.,>presl- 

S. F. Lazier. K.C. Mr. T ^•""„, eg Three me-ibers of the 

dent, we have a j^f^^f^f/P ,°' ,'„'d Country, namely. Thomas 
Association have died or their King and c ^^^^^^^^ ^^^^ 

Cn^thwalte. Ernest APPl^^'^-jf^ S' o^a«,an Law T.mks. 
might care to put a note of this in ^^ ^ ^^^^^^ ^^^ ., 

vers practising ra C^^r'>:„^l'„Z\>el. - Boberl 
•nlisted tor active soryioo 3 in n"™»"- p^„i,k 
Trawn Donaidson A-'keiJ, Major A. S^-^C^^H^ ^ _„ 


cronirrie Bell, Lieut. 191st Batt, Isaac r 

sr;^ o^;iri,i:rrvr:.s=^rr;.; .ric 

- i^ 



IwUTi'ity Unrv.'v, 1. 


Hnrdic, I 

iout .)<;... MHtf I)u^.„i,i \f,.(-o|| 

nivi^rsify Man.; Will 

'»l«t Hntt., C. A. r. K. h 

uuu Frederick |„j. 



••niiy ./('plisori. Sci-i,'! M 

McLean; \VilIi„„, si,our..|| Morns U'V'lV" . '*"''' 
^^''tl. Hatt.; William Ifar per S.'l ' ' H.;r„ar,| j{,i„ 

Maj. mth Matt rJ ;" "^^-^ ^^""''"" «^"art. 

'^ity Corps; Wi li^j^c iri^ w"" 'J^'-«"-". l^nivcr- 
"orbert Sicj r",^X^ Matt.; 

try; John Douglas rSm'L^^ J^'^' fnfnn- 

Milton Kowarcfsta,,L?>.Vr ''"'''' •^'"•'- ^^'^^ ^«tt.; 

^-<^y Broad. 8.'Bi^\^^]S::ir,f l' ^^-'^-' 
English, Jas. Harvov MaL A n ' /■ •^- ^^'""••>'' «• 

McWilIi;„ J^'';,^tT'F t.^ ^f^'Wi'liams, Dalton 
Ri'ey, W. R.\sa„de to^-k A ^^'7/^- "" «'^'>-ts, W. 

«tairs, H. Strange llut lJ^^^^^^T: ^ ' '^'^^■♦''' '^"''" 
auge, i.ieut. Leigh Walsh. Ed. Wilson. 

Nauu"ste'7arie'':r\ '''^*^^''^"' •^"--- J"%". 
Marie. ' ""^ '^^""^^J' 10th, at Sault Ste. 

'It is almost Iniposolhio to r. 
this obituary column c^r^f.'*"' *"=^*«"al inaccuracies in 
-eive. an. ... -or^e.^r- .^ue^-'.^rL. r^""" 


£ gaL f^i: 




[VOL. 37 

Honourable T. Chase Casgrain, P<fXf Ls'"" 
eral of Canada, at Qnebee, on December 29th last. 

His Honour Allan W. Bray, .fudge of Probates 
and Clerk of the Peace, St, John, N.B., at St. John, 
on January 3rd, at Albert, N.B. 

Johu Loughrin, formerly Judge of the District ,.f 
Niplssing, on January 2nd, at Mattawa, Out. 

His Honour Fred. St. John Bliss Judge of the 
York County Probate Court, N.B., on December 28th, 
at Fredericton, N.B. 

Ulric Tessier, advocate, Montreal, on December 
25th, at Quebec. 

Stuart C Johnstone, formerly of the firm of Ross, 
Kilfam and Haggart, Winnipeg, on December 29th, 
at Cornwall. 

ward Hamilton Bowlby, K^C;;;» Kitche"er 2«|;. 


L. H. Archambault, K.C., of Montreal, at Montreal, 
on or about January 5th last. 

Richard V. Clement, of Vernon, B.C., on January 
4th, at Vancouver, B.C. 

C. E. Armstrong, of Moose Jaw, Sask., on Decem- 
ber 25th, at Moose Jaw. 


issuTan^ArSTuDon riJ" '^'" *^ P^^ish i„ this 

««d of Li^^^j^ Inn Tit h?'^ ^'«^^' ^^ ^^^ord 
admirable comparative stuL 7T '^ ""^^^^^^es an 
rc'gktration of title in onr ^if *^! '^^ ^^^Pecting 
s«eh comparative studies are o-^^ T''''''''' «nd 
«ary step towards uTo^ty nfT 7^""' '' ' ''''^^- 
Property and civil rights^rm, I ^ ^^^' respecting 
^hich the British SI T ""^^^^^ ^«°adr. an ideal 
us, but towardsthe ^e LttToT:? ^^ ^^' "P ^^^o- 
been done. In the second nW ""^'"^ ^"* ^it«^ has 
J^sh his Article, because Mr'^Ho/' ''' ^''^ '' P"b- 
quent contributor tn f^ i ^- ^^^ ^ «ot only a frp 
cals, but alsol^r TrSfof ^ '''^' P«-^" 
conveyancing law and the l?w % ^ '^"^^^^^ ^^^^^s on 
«°t only in Australia where tT ^"^ registration, 
years, i„ New South wlfes but ^r'^t'^ ^^^ ««^era 
be practises, as we understand ^'°. ^°^^^"^ ^^ere 
Council, and as an advisl. . ' '^'^^^ ^° ^^e Privy 
> arising abroad or in EnZr^^'°' "^ °^«^««^ 
L"ff as one of the contri^,^^ f ' ^" ^"^ ^im figur- 
Burge's Co/on j;;f ^^;*;rs *« the new editiofof 

Article IS by no meansTheTast^V'^' the present 
the Canadian Law Timeg ^'' eontributions to 







. ia«t issue upon the matter of 

The Article m «fJ^^\;Xe Martin's Prize 3ur- 

the Ship Leonormd ^^-j^^nt consideration expla- 

isdiction, omitted one JP^XJcommissioners of 

natory of the ^cU^^^^^^^^^^^^^^^ If at the tnal 
the Admiralty and Sir Walter V. ^^ ^^^ ^^^ ^^^^^^ 
Judge Martm had released the ^^^ companion 

Court had ««^d«"^"^ 'i °e'the latter Court, the one 
ship whose status was hef ore the a^^^^^^ ^^^^^^^ ^^^ 

adjudication would, we tase , ^^.^^.^ ^^ 

other; and that ^^^^^^XaUonal tribunal to say 
no position before ^^^^^^'J^Te h^^ been deter- 
that the legality of ''^'^^''^^,,^^red by inter- 
^ined by a ^l^-^^^f ^^f e^lt^al that only one of 
national P^^^f «•, ^^/decide and the only way to 
these tribunals should ^^^'7' conflict w^ 

achieve this object and prevent a co^ ^^^ i^p.ob- 

Judge Martin's commission, who m g 

ably have discharged the ship. 

It is much to be hoped thal^i^e --t^^S^^^ 
theManitobaCourtof AppealmBer^^^^^ ^^ 

Referendum Act to whi^ we ,^ ^ 

234-5, wiU be carried^o ^^/^J^^^, ^ct, enacting 
the dmsion IS ^^f^.^;^i'^^^ fulfilled, laws may 
that certain P'^^^"?^*"^ direct vote of the people, 
be made or repealed by f^^^\J^l^^ i^ ^Itra vires. 
instead of by .the ^gf f J^.^^^^^^^^ 
Now if this decision ^^^^^^^'^^^^^^^^ has not yet 

respect to its own interna affairs i.^.^^ ^^^ 

reached its majority. ^^^^^^^^^^ achievement of the 
claim that it was the tran8c««<»^^' . ^^^ ^^^^ 

framers of the BriUsh ^'^'[^'^^T^^'^'^Jitution of which 
Ley had given this D^-^^^.^X^^^^^ and which 
the foundations ^re so wel an^^J y ^^^^^^^g needs 
is yet so flexible and a^apt*;;\^^^^^ eternal affairs 
of changing times, that, ««^^^ /f.^f^^a work under it. 
are concerned, Canadians could In e an ^^^^ .^ 

submit forever to TZL"'^'^ tT "' ^"'"^ '» 
in tbeir country ^rpa^ ™ ,;»„?'* ,"!.''*'^''''»'» 

.leet to the same powers nf vlfJ !f ^ .f ^"""^^^ «"b- 

provided in T^/sSl^^I "UtaTcT-'' " T 
eient to preserve intn^f fi,« ^mertca Act, are suflS- 

Governo?. 1^ Vefl^n f?^''^'^ "^ ^^' lieutenant- 
question invled :y'„'^!/f .^'.^*«^ constitutional 
submit, with ifreat dpfi r'''°" "P*^" *hat we 

We submit U hTelefbru^'e l^T' '." ^"^^• 
row a construction unon "r'*"^® i* ^f placed too nar- 

stitution-or the wXn T'^^'.^^ ^'^^ ^^-itt^n Con- 

a great -tioVL^Ie"rHnr wVs'u^^^^ 

a " legislature .'tlt^iftl^t^r^^^^^ '^^'"'^^"^ *^«t 
the powers conferrlrby that sZr '"' '"*^*'^ *° ^^^"^ 
comprise an elected lep^relen^^^^^^^^ must necessarily 

mit a 'legislature 'TssTmttn^^^^^^^ 
empowered to make laws Sf • ""^^ ^^ P^^P^e 
voters as a whole areTi^'r. i '" ^"^ "'^"»*^J'' the 

referendum, ^hen in th7 ''f *" "^"^^ ^«^« on a 
whole are the 'Teg/siaJure.""*''^' *'^ ^«^-« - « 

hasIUl^;*i,,?„* --;^^^^^^^ t^at the Court 

words " amendmenf of tL r'"" ^'T^'^'^^<^n on the 
tion 1 of sectio^92 and th«^T*'*"*''° " ^" «"^-«««- 

where he savs - in ?hisdlL ?''"!;' ^'^'^ '' '''^^' 
judges:- * ^^'' dissenting from the other 

^ that the proTlndal ConsUtutlon. 

- 1 M 

336 THE cAH«>us "w TiMja. [vol- 37 

such assumption." 

Above all we -^^'V^ W ts'^uUeT^Ted 
so far as the judgnnnts .^'{"''•''/^^Jt" Canada's 
and passed over the P""^'''' »J^^ prftv Conncil in 
f«-rrtr.X;:::«l^" Indian, prevl. 

OUS cases, that— ,^ iBrtrument 

.•There om 1« «» ^'f' *'' " „mta». «i the on. )>•»«. 

Now the InUiutive <^ ^''fZXJ^S^'^^^- 

'^"'7 X^^T. rtSa^ CoS: keep on 
ment. The fact l^V'!^';, , .g the fullest measure 

rs^'e^nZr^rso- ot^nr fudges persist- 
ently decline to accept it. 

I„ Uls --l^Pt^rsa7iteSaSlw^:; 
Dominions, Sir A i5. ^^'2 . .^^.gge^ in 1912-13, and 
^'^^::t^::'^ ilSt .o* passed in 

''X. referendum -not ^^^ fstp^ fot^^^^^^^^ 
question: the effect «' ^^ "f ^'itr^e lulned In the Act as 
a measure the f ^<=* *^™'i ° /^ ewed In essence, nothing more 
passed shall take «ff«f • " '^ ^^ the whole community: it is 
than a local ^^^o Bill appUed to ^he ^^^^^^^ ^ 

conditional legislation. "^^^^-X £7ZviTeA bs to tixe cas^ ot m 
fectly valid. It is more *»fflJ^"4Vrib«ta and Saskatchewan Acts 
initiative in the form in which the Aioert 

enacted it.' 

This last he considers- p^uament. and It 

•clearly reduces to farce tje Proc^f^^f, tfef !n auestion on 
.eems therefore '^^\i'U^^lfI ^^ent thing if the measure as 


J »* IHE WAY. 33^ 

The Minister of Finance for Canada lia=i !>».« 
ada^ under the provisions of the consolidated orders 

andof tt Prn?" ^"/^«^«f ^'^^f^ Orders in Council 
and of the Proclamation of His Excellency the Gov 

r eoruary 17th last, it is important that full informa- 
lon should be obtained with regard to all propel^y 
real and personal in Canadian Territory belongfurfo' 
enemy subjects, and also with regard to all propertv 
re^l and personal in enemy territo^ belong^lg to^Br -' 
sh subjects together with claims British subfects mav 
have against enemy governments. In order to comply 
with the directions contained W these orders returns 
are required from all British subjects, firm or cor 
poratxons resident or carrying on business in Canada 
who are directly or indirectly interested in any mat 
ters coming withm the classes of subjects following - 

torv L^"''^^"*^' ""^^^ """^ personal, in Canadian terri- 
tory, belonging to enemy subjects. 

... ^^^^/'' ^"^^"^i°§^ bank deposits and bank bal- 
ances, due to, or held on behalf of enemy subjects res 
dent or carrying on business in enem^teS^ or 
CaLda" ''' '" '^'^^^ '' ^"^"^^ subje'cts resld7nt in 

(3) Property, real or personal, in enemy territorv 

Snfrin%rr '"^^'"'^ '-'^-' - '"^^^ ™ 

(4) Claims of Britisli subjects resident or earrvin,, 

°" Tr„rdir"eet?'""''T"^' ""^"'^ gote^S 
iiie Classes of information above set forth cV,Li^ 

the necessary form will be sent. 


J ; 5? "la 





[vol. 37 


44 Bbdfobd Row, 
Apbil 6'rH, 1917. 

The Editor, 

"Canadian Law limes, 

\' r.f +iii<» hodv are attended not only by tne 

i f^orn all the Dominions and India, with the ex 
^plwlus^a^r whose -mbejrs - absen 
oXff to the difficulties of domestic politics. For the 
S'timet the history of ^^^^^^^^^^ ^^^ 
Conference is meeting to consider with *«»J^««^;^^^^ 
powers and responsibilities t^e Pol-y of t^^^^^^^^ 
to be followed in the war and m the ^^t"'^*' ,P?^?;- 
This Conference was summoned to meet a defimt 
need. The summoning of the Imperial War Cabinet 
\ru fnr closer approach towards realismg the prin- 
IptlYttTeVTovernment which h^ 
on the Dominions than anythmg which has hitherto 
been done by postal or cable consultation or by the 
occasional pLs'ence of single Dominion ^-^^^^^^^ 
the meetings of the Cabinet, or even by the Impenal 
Conferences before the war. Not only ^^e represen 
tatives of the Dominions and of Indm now gathere(t 
ogJther at the same time, ^^t they bave come a. 
Mr. Lloyd George has said, "not to a formal Imperia 
Conference, but to sit in the Executive Cabinet of t < 
Empire." 'it is this which makes the session of « 
Imperial War Cabinet an historic event. Fo^ of ten 
as the representatives from- the overseas Dommion'^ 




have tl"v"harL whh^t '■ ''?"*"'y' "'^«'- •«'»" 

mtXTBird::ii4Tith"Ter, r/ "-^^ ''^" 

lines of the SeponXsv^ke^Irlf''"' °" '"" 
pareuiy, one particular secUon of ,^,f"""^: ^!- 
likely to be iettisonort »!,.;• .u,*. ""nipromise is 
of the orindn ! „f „ ' "l"' '.'"' ''"""''^ application 
even wi^h™, ;, ^ P™Porhonal representation. But 

tration. Only two nn.Tifiii- '^^'^'"''<' and regis, 
dence or si. LXsZIZT^::^:"' ■ ""»'«■»' ««'- 

(3) He.5r:?;:nl:n£;:,,;;^^^^^^^ »-- ^ay, 

fi^etr tl^ray^SVet''-" "F^^'loIJ^irand . 

Redistributiron: ™ "Tef ?■"' '''^"''''■- <*> 
70,000 electors to e«.l, ?w °'°''' °° ^ ''«sis of 

legislation sho^™ L ;„f /""J""" "'°"''n 'h"' 
Besolntions passed af thi^ r*", <»»''»<'>-inK the 
Prime Ministo .aid hat thr^^" Conference, the 
mined to leave the deril '">™™'»««'t had deter- 
the House of Comlt X ™ """^T^' '''"'"''' <» 
that the decision win h • T ""'"''' '"' """'^1' doubt 
whatever may be Z „r '" 'T" "■' ""' """"ipl^. 
One of the most iut'resl^n °™ " "'^ "'^-rae- 

speech wasThat in wM ,T "'"'f*;'" ■" ^'- ^^"'^^'^ 
to the canse of' women', '.^""h "^^rf ""■ 
opposition had always been bas^d ^ tr ""■' ■"' 
ency, but women had worked ^, 1 ""*""■■ "''I'O'^i- 
and, short of bearing Zs in the w«r T ""™"™' 

speaker. OonferLc^-^^l, ^1:^^^^ ^^^ 



'■-. « -I 



[voii. 37 
■^r A«.r,»u>i aai(! ''in no other way can 

the war is ended. 

The Government have acnonncod tha. the con^ 

The Oo™"™ .,, J ,i „Hh the extension of 

8 deration of the Bi» ™''""f , . ^^ ^^h until 

the life of Parliament will not be J'^^'fi^^.^j „^ 

after the Easter recess. J^e P' ;«J f^^ ,„aer the 

'^'".'fhat^f sh n^be e*4dS for another seven 
posed- that it snouia ue « curious that the 

months until Noyemher 30th ^[^^ '^'^l^^L of the 
first Parliament to he subject to tne provisiu 
brst raruam ^^ ^^^ exceeded its 

Parliament Act, lyn, suouiv* inniypst of the 

^'^^Z^^ rrasstS" :e the 
anion with Scotland in 1707. 

After much pressure from Members of Parliament 

^zi a^Bui ird/rst r f 

House of Lords a «m , ^^^^^„,,^ent of 

rwrireSntf of - ^-rrrelS^. 

lated the Kaiser after ^^^t w the Xse of Lords 

pose of the Bill at P^f of thTpri^^^^^^^ to en- 
is to set up a committee of ^^^e f ^^JJ. „^ ^^tuied 

?:rt;?:lleTVXr: peeHr a British 




printe who havo durin*^ th ^"^^ 

to be f^iven a free hand to nT ^ committee is 

formation without S bound T ?/ ^^^^^^^blo in- 
evdence, and their report i" 1 1 «' ^*"'^ ^"^« «^ 
«'ve. Such report will be Ja.ln J^ ^"S' ^°^ ^«°«J"- 
o/.the person lderLsX«f' '°u' '^ "'^ °«"^e 

^t i« to be communTcated to tuj^ '^ ^ P'''' 

■«ents. The title or dSv « ^'^""^ °^ ^^^ P«rJia- 
^ «y rights or prXZes'^a^^^^^^^ ^^^^^^^'^ -^^h 

cease and determine asfro.^'^fK^T"'^ ^^'''^'>^ ^i" 
-d alMetters p"tU\tM;t 't ^'-^'^ -P- ' 
comprising or creating thXl -n ^^ ^''^t^unents 
revoked. This deprivation S/' ^' ^'^^^^ to be 
in a peer to sit in the House of f' T^^ ^"*^ °^ ^'^^t 
^n the election of a pe^r an/ 'I^' °" *« t'^ke part 
editary title or diwT'tb^ '-'"u/^" '^'' ''^ «" ^er- 
fffected. It is, We ' ' "*^^*', "^ *^^ ^^'«"e are 
^h-e is no inteWerenee ^ith tT''^' ^^^"'^^^ ^^at 
estates or property. *'"^' ^'^ successions to 

Lord Buckmaster's Bill to Pn«Ki 
^«e as solicitors has been read « f'.^r.^" *" P^«^- 
House of Lords but haV n ? ^^ ^^'""^ *'™e in the 
t>^e Commons, and^^he/e i^ftl^f-t" ^'^ -*'. iu 
proposal becoming law miji*"' ^'^^^^^^^ «f the 
B^'I to enable women tlbecZe hL ^P"'^"^ ^^ ^^^ 
master recognises that thn/-'*^"'' ^^^^ Buck- 
solicitors could not fan in l^T'''*'' *^^ ^«™en as 
Benchers toward" thet clafmT -'^ ""^*"^« ^^ the 
am not disposed " sav. fh t *" ^""'^ *^c Bar. -j 
Article contributed to"^: dailv^"^''^ ^^^"«^"«r in an 
t.^e Benchers of the fourS LT' "*'' ^^"«^« ^^at 
strained to adopt a dSerent Jh^.'Y^ ^""^^ ^^ con- 
cand date for memberS of il l^' •" *^^ ^«"^«n 

^^^^t^'Z-^ *t Of the Home 

aliens has been given by the 



I ' « 

1; I 

r ' 

ll ' 

1- - 


1 • 4V.- n»«« of R V. Home Secretary, 
Court of Appeal i° ^J* ^^'^^i-f'^^ In this case the 

bound for I'""^- ",Chr^«ldnot,inf««t,l.ave 
that once on board '"^'"'P.", ..ji^ion of the French 
,.,t it --^\^'':'X^:^^»^^'^- "«»■«"' ■"" " 

r-raUtat".^" f ^^^^ 

^'■' SrfremS'UrtlfHre'sicretar,. ha, . 

r;S' ':' -t' a aeport^«o-;ta (T^Ve 
friendly alien under sec. 1 (1) (h) and U ^^ ^^^ 

^ tens Reatnctton '•"•"" "" , , „„ power 
Order in Council n...dc ^'^"^"^"^^^J^^i ^J m«<,i 
to select the e-ntry 'o he d»P»;Jf^^» ^ that 

?°Lr TrCo^rttf Appeil h-! however, reversed 
;M:"de^:n'aZ held fl^) that tbe powers conferred 

VV^hZ^orii^X'":^^ wider than 

favour of the 'fl'^/' 'tpHSnbto the later 
statute '=«"°°';,^\%':'^,^^/rCouncil which enable, 
!l Homf Selreta?? to select the ship on which a de- 
* rt^"Xf It iLe is valid, even though vnprac- 

L, it amount, to h^dmK h™ ov ' '^^f g^re- 
tionlar foreign P<™'«.|,''"l,<^\>Jf„;' „de7 compelling 

rrt'ry%\Slaf'p.a"e,trhy th^e authority 




f'lHn*?Jl't t**'\*^' "'•"" *"^ PJ*«« fa'™ on board 
a Ship (which I construe ag meaning a ship which the 

Govermnent select) and keep hin. the , Jiil Th ship 

that the alien w. 1 be deported to the country to whi^h 
that ship shall lirectly sail." 

rof'?P<f''t al Committee of the Privy Council is 
^?s MaW . ^"°»»°«^ Appeal-it does not advise 
.lis Majesty to review criminal verdicts as it reviews 
other verdicts. This has been decided again and 
again and once more in the recent c-se of Dal Sinnh 
,y^Kmg.En,peror. The Ring in Council will, however, 
in certain cases interfere to over-ride vwdicts in 
criminal trials given in the non-self-governtng par" 

the Crow7'''p"^r '^' ^.'^"" '" ^'^«""-'' an-^not 
the Crown m Parliament, is the final depositorv of 

If ther. has been some great and manifest departure 

men'a ti::"';' ^""^T'" V""'"'^' ^r ^fa« '-"a 
mental rules of criminal procedure. In other words 

It IS the public mischief caused bv a precedent which 

vMdates natural justice and disturbs publi confi^^ee 

o in • T'r 1^ *^" ^"""*«' «°^ "ot any wrong done 

ule o^law 1'' r r' °".f ^'^° interpretation of a 
rule of law, which alone will cause the Committee to 

adv,se an interference. A mere mistake oHac nit 
enough, still less is a mere departure from the ech 
nicahties-of procedure - there must be somet dn^ 
more, namely, a violation of natural justice ^ 

givel tv7C^f -""' importance has recently been 
cZZ f i I^^^^^s^onal Court (and affirmed bv the 
Court of Appeal) in the ease of Rex v. Officer cZ 
mandrng Tenth Battalion Middlesex Regine^'^^^ 
parte Freyberger. Both at Common liw .. .y 
Matute every person born "within His Mt. tv's 

a^rrn-'"' ^"^^^'^"^^ " ^« « British subje^V;7en 
although hi. , arent.s are aliens. Under sec 14 of the 
Brtt^shNatronality and Stains of AlllsAct 1914 
(-Placing a similar provision in'the ^^/^iLTn 





Art 1870) however, if the law of another country 
^llf::?h aTe-n a. its subiect. tje-n ^U^^, 
the age of 21 years and at any time after, he can elect 
for Ilia foreign nationality by a special i>ro( pro. 
vided by the Act called a declaration of al»^"«K^' «^^ 
Ion n^ ing snch declaration the person ceases to be 
XI "liect. In the case in quesHonit was heW 
bv the Divisional Court applying the doctrine otRex 
)'Lynfh} that a British subject cannot thus divest 
himself of his British nationality and become the sub- 
ieTt of an enemy State during the continuance of war 
between Great Britain and that State. 

Maitre L.bori, the difnguished French advo^at^^^ 
whose defence of Dreyfus gave him a world-wide 
Teputltion, died in Paris last month at the compara^ 
tfvelv ear V age of fifty-six. No member of the 
French BaV wL better known to EngHsh-speaking 
lawyers or more highly esteemed by them. When he 
c me " England in 1901, he was the chiet guest a the 

banquet of U>e Hardwicke So^f ^y -hen ^ Y" t 
High Court judges and the leaders o^ the Bar as 
sembled to do him honour. Amongst the s, -akers, 
Tn th s occasion were Lord Halsbury, Lord ;J"^ ; 
Lord Dunedi, . Lord Finlay, Sir Francis Jeune, Sir 
Edward Carson, Sir J. Lawson Walton and Sir 
Edward Clarke. As Batonnier of the French Bar 
he attended the meeting of the American Bar Assoc, 
ation at Montreal in 1913 when Lord Haldane then 
Lord Chancellor, was also present and dtliverod a 
notrble address. 

At. the Annual meeting of the Selden Society Loi^ 
Parker said that a most interesting problem arising 
Tut of the war was the future of International Law. 
,The ev^ence of the last two years might lead m 
future, in the case of an attack by one Power to al 
the otier Powers joining in exacting retnbution^ ihe 
next development of the society of nations may be, 

' [1903] 1 Q B. 444. 




and perhaps ouKht to 1„. in the direction of tho aboli 
•on of neutrality. That might be a hard saWn. for 
hose neutrals who had devoted thc^ offort?toward 

o ™r7"2'"^"°^ codification of the laws or rules 

tlT \'* !f ''*r "'"*^*^« i° ti™« of waT but none 
he less he thought that that wa« the direction whi oh 
the development of International Law shlld take! 

W. E. Wilkinson 


1$ i 

1? r 


I «*-f 




[voii. 37 

The Dominion Parliament ha. power ^ enaot^»d 
has enacted a ^^'^^t::!n.^:$r^^- tor .^ m..- 
State may is^"«.'=^'*"\°l '"^th authority to trans- 
fer of commercial r"f ""''^a^'^d it has been lately 
act bnsiness fronghon Canada an ^^^^ ^^ 

held that Companies so incorpo ^^ ^^^ p„,i„ees. 
their operations in aU or j ^^^^e^ under 

Each of t»'«/'°'.f ncorporate Companies with 
"'■w«'ioTar:;t"4V operations in the Province 
S llwSrT-t their discretion. 

The provinces ge'^.^VtorotheXXeto 
eorporated by *«Do-"°,r2borarBtatements of 

obtain ""^^"^ »1 '° "LiZted by the respective 
their affairs with officers desig 

Acts. . riirht of extra- 

some of the P-^Hnd D^mSSontorporatuins 

Provincia Corporations and 'J „^, ^.^^^^ ^^^ p 

to do bnsiness or t» f°'°^^ °° ^id the tern, regi»- 

vince nnloss »<1 ,?»f *^ throther conditions laid 

tered, and '=»>»Pl;«^. J'.fjfatton. We need not con- 
down by the ProvincianepsaU jurisdiction 

sider wheher the P^o^'^^^j^^;,! corporations or 
over Dommion or extra rro ; j,^ jo doing 

whether they »» '"'1^* "%? the Province on snch 
business within the lim s »^ ^^ j^^^ents. It is 
Companies f^P'^^'ftey ns«t *ey have Uiese 
enongh to know th«t they ^^^.^ ^^j^^.ty 

powers "tfthSTn rights by tedions processes 
TutigXr-alT i^ the Irivy Conncil. 

"J 1 



Lawyers can readily understand how desirable it 
is that all Company law or indeed all law should in 
SO far as possible be the same throughout the Do- 
minion of Canada so that a man of business educated 
in the law of one Province may not be in a foreign 
land when he crosses its borders into another or that 
Companies, like individuals, may not be thwarted or 
embarrassed in business by unnecessary and irritat- 
ing Acts of the various legislatures. The chief reason 
why, I think, the Provincial Governments are so in- 
dustriously building up barriers against Dominion 
and extra-Provincial Corporations is because thay 
need the money paid for charters by those who wish 
to take advantage of the Companies ' Act. These fees 
are in the aggregate large and are of much more 
importance to the Province than they are to the Do- 
minion, and if one can overcome this objection it 
seems to me that the Provinces would readily 
acquiesce in the passing of the Dominion Companies' 
Act and repeal their Acts if they found that no Pro- 
vincial interest would be affected. 

I propose therefore that the Dominion Govern- 
ment should amend the Companies' Act, as follows: 

1. Enact that the Provincial Secretary or some 
other member of the Provincial Government should 
have authority to issue charters for the Secretary of 
State at the capital of the Province. 

2. That all applications for charters should be 
made to the Provincial Secretary of the Province in 
which the head office of the proposed Company was 
intended to be situated. 

3. That ithe schedule of iees named in the Act 
should be paid t^ fhe Provincial Secretary, and that 
he should account for twenty per cent, to the Secre- 
tary of State and apply the remainder for the use of 
the Province. 

4. That the Provincial Secretary should forward 
a copy of the application and the charter to the Secre- 


I < < 

'■ A 

i 1 






tary of State iimnediately after the granting of the 

'^*f That all returns required to be made by the 

' ^- ? 1 ;i I Z.A^ to the Provincial Secretary m 

t'pttce' n"wMy*fherd offlc. is situate, and 

L the Provincial Secretary shonld forward copies 

* thie returns to the Secretary of State immed.- 

atelv after their receipt. 

r^: ?roSrr„j;:nrTct'rnS?tJ 


made a schedule to the Act «»« "^f/'f^j ^j ^uh 

f„ become -"-P^'^ttges anH^^^^^^^^^^^ ""^^ '■'"' 
%?ThT?ro:indareSers, under this Act and 
r': d ng that th«r incorporation under the Pro- 
Sal charter should continue to exist 

The Provinces then should repeal »" leg'^lat'^ 

• ■ r^.-nmies to nsake returns or to take out 

requiring Companies to m j^^giajion inconsis- 

licenses together with all »the' legis ; ;„„ 

,ent with 0','f ^^f J™;:r DoSnl™ Act to be 
TCll ttflCtinr ^e^arding Coinpanjes^ 

« Trtrn^^tiSrct^arieSr. 

we would m tne ena uttv« _,;«>, «<* the vears go 
I- +i,T.mio-Vinnt the Dominion which as ine y«ai e 

Common and Mining Stock. 

• ^^r "' tthrcot;;vraToT5fetSnS 

ever acted upon all the Company la ^^^^^ 

of Canada should ^e amended so as to pro 

°"'^ ™crLt"t"— ^^^^^^^^^ - »' 

Ta^s^c^Ld "Watered st.k^ 

^-ill retr:'^U"fr?li; issue of mo. 


mercal ™dertakiDg whose assets as a going eonce™ 

S dldf„ ' "'™' r""" '■' C«™da is under a 

mortgage bonds as can be disposed of in the market 
assume in th s case ta'imnnn ti ""'""'™t, 
f,m.m 0. o„n,„,:fK; fr'etSst'r The^H": 

business with /s/moOO bo'nds :nT^'oO^"r?"'^ 
mon stock and $2 500,000 preferred s£k~ om" 
mon^stock .s usually given a, a bonus to purcha Te" 

lie tt„Zr'"?f "' ""^ "> '"^ «I«™la ing pnb 
If Zr T**" "* ^'°"' ^ '° ™ '^«nte on the dollar 
! , '"^ jalne and in dull limes at from 10 toll^ 
cents on the dollar. The holders of tlTse sharf 
tor? ta'mar If ""?,'"' "' *''^ ^'ection of dir. 
in many o herstuh » "" l"" ""^ ™*'"« P»-"- 

they cai :»r:iT e Corrn/The"' "' "l''"^ 
hungrv for divid«njl ^ ^ P*"'- They soon become 

the directorate for tt- '""'T'"' " ""^^"''^ on 
all the m. "^"^ payment, with the result that 

she Jd gol fa^re^fr^rftr"" °' *"" P"«» ^"^'' 
on stock whid, waTi,,ued fnTT"' "f ^'""""ds 
people who „e elga e the r "' " P"'"* "•" '» 

the stock ,nd wh'en''r.l'H;e'Tr-;,rg Ihe"com 
Pany is compelled to pass iU H,-^/j. T^ ! ^°"'" 

m a great many cases besides tit '"rr^sulu't 
vot. xxsra. cx.T 23 



. I 

5'. » 

.f i.ft 

I ' 


[VOL. 37 

hesitate and wise ^^'^^^^J^f^.^ stock of Companies 
clients to purchase ^^e pr^t^^^i^h have .. large quan- 
no matter how flourishing ^^ . Tv^e only per- 
tity of outstanding water secunti ^^^^^^ ^^^^ 

sons who desire or who ^^ny « J ^^^ ^^^ ^^o- 
Ctered stock - the sp-u^^^^^^^^^^ ^^ e 

voters. It IS tiot the law ^^^^^ .^ ^^ ^es 

Sock speculation. "> J^m^^^^^^ ^nd affording 
the machinery for «^^^^'^^ .^rrying on the husmess 
o them power at^d n^^^^/^f /,? Jich they are m- 
on sound financial P"^"P ^d he issued excepting for 
orporated. No stock f^^^^^^^,,,^ or as it is ex- 
- s\r"tm:oTt^V4 cVs ''an equivalent 


inducTthe puhlic to P^-^^s g ven t^ every huyer 
an equal amount of commo^ ^^ S ^^^^^^^ ^^ ^,^efit 
of the same amount of P"f f ortion is given to 
accrues to any; if ^^ ^^^^.te' Zount of preferred 
various P^^^^!«^^^°^.l^' to those who receive the 
then an injustice ^« ^o^^;,„,onnt of common is 
lesser amount; and f f^^^//,^,iters for services or 
given to Pro«^oters and und^^ .^ ^^^e to the 

fisk as is tt%«ommon case an 3 ^^^^ ^^ ^^^^^^^ 

purchasers of the P^f "^^^ v,onus of common is 
?he honus of common^ If no ^^^^^^^ ^^^^ 

ffiven, true no mnustice is aone ^ promoters and 
'X W tbaUh-ommo^^^^^^^^^^ ,, af^ 

underwriters hut t^e va^^^i^ty of the Company to 
fected by reason «« the mao y ^^ ^^^ ^^.^ 

build up a reserve and^^e ComP J ^^^^^^^^^ ,, 
for want of capital which goe v .^^^^ .^ ^^^^^ 
th^ ccnmon for which ^ttle, it an^ ^^^ .^^^^ 

L issue of C071- tat tg^a^^^^ -^^^ ^^ ^^^^ 
tion of the limited Compan, .eg 

J. . h 


all issued stock shall represent an equal amount of 
capital paid into the coffers of the Company and it 
is only by taking advantage of the decisions which 
hold that where there is any consideration given for 
the issued stock the Courts will not inquire into its 
adequacy that watered stocks other than mining 
shares are legally issued. 

Another reason why common stock issued without 
adequate consideration should be forbidden is because 
it affords an excellent opportunity to defraud the 
?^eople the great majority of whom, including the legal 
inofession, are quite ignorant of Company Law and 
promoters' practices and believe that things are what 
they seem. They do not know or understand that 
when they buy a hundred shares of the par value of 
$10,000 that the real value of such shares is usually 
nothing. There are hundreds of millions of dollars of 
of naining and common stocks roaming about Canada 
seeking a resting place in the pockets of the innocent 
stock gamblers which are worth perhaps the paper 
they are printed on and have no other intrinsic value. 
Even if it is true that it is impossible to prevent 
shares being issued for less than the full equivalent 
of their face value because of the difficulty of apprais- 
mg at its true value property taken in exchange, it 
only makes it more desirable that only one class of 
stock should be permitted because where all the 
shares rank equally for all purposes, those who under- 
stand, among persons who pay the money or give the 
property, would see that they were not swept away in 
a flood of stock given to persons who give nothing but 
services for their allotments. 

Mr. Thomas Mulvey^ K.C., Under Secretarv for 
State in his interer^'-g Article '' Certified Secur- 
ities," American E- ae P.evK , September, 1914, 
thinks two kinds of _ks not undesirable and that 
the legislature cannot protect the public against its 
own stupidity. My reply is that, true, the legislature 
eannot be expected to shepherd the lambs through 





life, but still the legislature should not set traps for 

''"he most glaring cases oi -^^^^^^^^^^^ 

a„a unwise and improper^^^^^^^^^ ^^\ ,,, 

^"^•^ ^^^ tT of M^^ing Co-p-ies. There is no 
incorporation .f^^ ^/"'^f celling at two cents on the 
reason why dollar stocks sen mg ^ 

dollar should be i-^^f^^-^^.^C ra^^^^^^^ 

i„g betting proposition^^ J^'^Tt to issue stocks with 

for mining Pn^PO^es and allow it r ^^^^^ ^^ 

,o personal ;7Xf l^^^^N^^^hC a great lottery 
the public IS no nwie ana n ^^^^ ^^^^^ -^^^ 

scheme authorized and fatbe'rea > ^^^ ^ho 

countries whev people P^ofes^ an abhorre ^^ 

„,ost innocent kind of gambling it is ^er^ '^ .^.^^^, 

see their tolerance ^o^ P-hapsJ^^ ^ptuLon. A 
form of gamhlmg, ^^atis^ stock P ^^^^-^ 

perusal of the mining pr^^^^^^^^^ .i^^ple-minded 

cated to extract the ^^"f^^/.^^^^^ ^^ch better to 
should satisfy anybody ^^at it ^^^e m ^^^^ 

allow -restricted be tmgo 1^.^ era^^^^^ ^^^^ 

at least gets a run for his monej^^^^.^^ ^^^^^^ ^^^ 
legislation nnder which these ^P^ ^.^ ^^^ ^^^^^^. 

their business. It is saia "^" , g^hem.' 

their incorporation, \ncorpora on for ay ^^^ 

which man can devise is authorized m one or .^^.^^^ 
the neighbouring fta -, /^^^^^ ^^^ ^ere would h, 
Govermnent wouM 1-^ ^^^ ^^^^^^^^ Appvopriat. 

i^i^sr ^ht ur w p^^^ --^^ 

very severe penalties f^^^'^l",,^^-,,. sto.. 
Company withm this ^^^^''^^ Joviding that no Com 
■ for less than its par value and proMd mg 

Pany which did not compb^ ^/^'^ '^ ,^"7t is said tl.n 
^inc'e should ope-te -ithm its hmi s^^ It^^^^^^ ^^^^ , . 

unless money can be ra sea d\ ^^^haticallv <i.~ 

would be no mining development J ^«^f ;^;7^i,i, ,, 
pnte this statement^ ^'^^'^ Zf^ Hinar a shI ^ f,.v 
do anything more than speculate, a dollar 



100 shares as quickly as ten cents a share for 1000 
shares. Further, in most cases the shares '.le sold 
for a nominal sum which is used to mine the public 
not to develop the mining country. 

Equitable Relief. 

The case of Foss v. Harhottle,' is the foundation 
of what to my mind is an unwise rule of law, namely, 
that the Courts will not interfere with the domestic 
affairs of a Company excepting to prevent or to give 
relief against fraud, where the acts complained of are 
confirmed by or are capable of being confirmed by a 
majority of the members of the Company. It ought 
to be a law that neither the directors nor a majority 
should be entitled to do anything which is inequitable 
with regard to the minority and the Courts should 
have power to give relief in said inequitable conduct. 
Corporations only exist for the convenience of busi- 
ness and not in order to allow a majority to tyrannize 
over a minority. Where two or more persons are in 
partnership no partner has in the eye of the law any 
more control or right over the undertaking in which 
they are embarked in common than the other, and 
there is to my mind no sound reason why the law of 
partnership in that respect should not apply to Com- 
panies. Ii is not here suggested that the Court should 
interfere excepting in cases of injustice. Where the 
majority in the exercise of its judgment adopts a 
course which reasonable people might well consider 
for the interest of the Company, the Court certainly 
should have no right to interfere but where the only 
justification for the action which injuriously affects 
the interests of the minority is that it is the act of the 
majority or the act of the directors who control the 
majority, then it is a denial of justice to deny that 
relief on the doctrine laid down in Foss v. Harhoftle. 



: ! 

•2 Hare 481. 



DiBECTOR Officials. 

[vol. 37 

The provision in the Companies Act with regard 
to the payment of directors who are officers of the 
Company which requires that no remuneration shall 
be paid to them unless under a by-law passed by the 
shareholders is nearly universally evaded. 

A general by-law on the incorporation of a Com- 
pany is passed authorizing the directors to pay to a 
director officer such amobnt as they m their discre- 
tion mav think proper and the matter never comes 
before the shareholders again. In large corporations 
this evasion of the Act seldom if ever occasions m- 
iustice but in small Companies it constantly does as 
men who control such Companies usually are the 
directors and can increase and do increase their own 
salaries keeping equal step with the prosperity and 
operations of the Company, so that many investors 
in these semi-private companies are starved out. 





Acknowledged Truths in Poutics and Jurispru- 
dence Can Never be Too Often Repeated. 

It is a co-incidence worthy of mention, that it was 
during the troublous times of the Civil War, when 
was waged that fierce and bitter contest between the 
Stuarts and the people of England, whether the 
Nation was to be governed by Kingly prerogative, 
under the absurd assumption of Divine Right, or by 
the people through a Parliament, that four of the 
greatest Lords Chief Justices flourished, — Coke, 
Holt, Hale and Mansfield, all of famous memory;— 
and also during the like period, there existed four of 
the basest and most disreputable Chief Justices that 
ever wore the Collar of Saint Sulpicius,— Kelynge 
(Keeling), Jeffreys, Scroggs and Wright, all of in- 
famous memory. Lord Chancellor Campbell, in com- 
menting upon the virtues, integrity and ability of Sir 
Matthew Hale, remarks,—" We pass from one of the 
most worthless of Chief Justices to one of the most 
pure, the most pious, the most independent, and the 
most learned— from Kelynge to Sir Matthew Hale. 
Imperfections will mark every human character; but 
I have now to exhibit a rare combination of good 
qualities, and a steady perseverance in good conduct, 
which raised an individual to be an object of admir- 
ation and love to all his contemporaries, and have 
made him be regarded by succeeding generations a* 
a model of public and private virtue." 

Matthew Hale was born on the first of November, 
1609, at Alderley, in the Countv of Gloucester. He 
was the only son of Robert Hale, a member of the 
Bar, who had been trained at Lincoln's Inn. Before 
young Matthew had attained his fifth vear both of his 
parents were removed by death. He 'was committed 

«! i' 


to the care Of Anthony KinK^onoc^V.!^^^^ 

™en. Mr. Kingscot ^«^«. ,^ r"'^^'„"i,rtbe tuition of 
voung charge for a T^'^^^;^ ^^ * [i,, puritans, he 

teachers l^ol<^i"^/^V of str ctne. and truth for 
acquired those habits ^^ , f/^/;"^^^^^ He early 

wMch he was so ^^;«V."«"^f ^llat di^^Rence and oxtra- 
acquired the reputation of gi eat diUge ^^ ^^^^^ 

ordinary proficiency m armng'^^^^^^ t g ^^^^^^ 

teen he ^as removed o^^«f "^diah Sedgwick,, a 
His college t"tor was 1 e Re- ^ ^ .^^ ^^ ^^^^ 

noted Puritan. He ^1\^^\^V^?':,,,,. devoted his atten- 
Orders. For a time he ^^f"\«^^'>Xed a great repu- 
tion to his «tud;es and rap.^^^^^^^^ ^^^ ^^^^^^ 

• tation for zeal and ^^^""P^^;- -^^ the tempta- 

.,., youthf.1 P-tan "na^^^^^^^^^^^ „,„„,. 

tions which the V"'™""\ „.hed into dissipation, 
abandoned his a_nf "™<fg^?\ ^„rt he »ub- 
His thoughts turn.. • '» "'""^J^^u tutor to tho 
seqneotly deeded ; "^eomp^; .^\,, ^^, „f the 
low Conntnes and, traU a P_^^ ^ ^^^^^^^ 

Prinoe of Orange. ■■ , eminent Counsel, 

happily diverted by the "^^'f »' "^ ,;„„ to consult 
Serjeant Olanville, '•'""''''J.f ,"3 estate. On the 
iu some matter '™™^'''t;''' ,J a Jd d to abandon 
advice of this learned «;' *f"^J'^,^"!„f,ssion of the 
military --;-,""'';"' ./^ of November, 1029, 
la,. Accordmgly, "" '''" f ^3, „a„i,ted a student 
when twenty ycor'L^f a^^' "t. „?,■! be had displayed 
0, Lincoln's inn. Th-rt-n^jht^^^^ ,as 

in the l""™^,"' tX and unremitting application 


. experience in the ^'o^^iX should follow the 





businoss; havin^r occasion to spoak with Serjeant 
Ulanville about some business connected with his 
estate, he found him of such prudence and candour 

Hat he at once entered upon its study; that when he 
became a member of Lincohi's Inn, he studied sixteen 
hours a day for the first two years, but ahnost brought 
hnnselt to his grave, and afterwards reduced it to 
eight hours; but that he would not advise anvbodv 
to do so much; that he thought six hourk a day. with 
atteii+ion and constancy, was sufficient. He further 
said:— That the law wouhl admit of no rival, nor 
anything to go even with it; that he made a resohi- 
tion, which lie had punctually (.hserved ever since 
tha he would never more s(.e a plav. having spent 
pll his money at Oxford and having exp.^rienced that 
1 wa.s a great alienation of his mind from his studies; 
that having seen the evil eflft.ts of the intemperate 
use of strong drinks, he had made a .solemn vow never 
a^'jain to indulge in its use, which vow Im- had faith- 
fully observed." 

Hale, while a law student, read over and over the 
year books, the oldest reyorts on the English 'law 
consisting of eleven volumes, extending from the 
reign of Edward I., to the reign of Henrv VIII a 
period of about two hundred years; also Coke's 
Reports consisting of 1.3 volumes, confined to the 
reign of Elizabeth and James I., containing over five 
hundred leading cases; also ail the treatises on the 
Common Lpiv, by Glanvil. Bracton, Britton Fleta 
and Littleton, and also the Institutes of Coke He 
studied with care and greatly admired the Code, the 
Institutes and Pandects of Justinian. He said the 
true grounds and reasons of law were so well de- 
livered in the ^>igest, M,at. a man could never well 
understand law as a s.^once without Hrst resorting to 
the R^man Law for information, and he lamented 

A -ll TL'"' \'^'^'' '^"^^"^ ^" England. Lord Holt 
admitted, that the laws of all nations were raised out 
of the ruins of the Civil Law, and that the principles 

' 1i 1 

■ i 




„, the Eng.i»h law wore borrowed fro.n .hat .y»ten.. 

:UVouo^ed -P™ «;nX"":,,. „„„„.U.,n« 
Having pursued ^"« "Xwas called to tho Bar 
industry for seven years, H;^^J^^«;"'„, fre.,uently 
in 1637 in the 28th y^V^'^l^^^'Js of religion. He 
expressed his sentiments ^y^l%\XioL^ faith, 
indined to the ff'^'^^YjJl' fj Covenant, and 
He signed the »« "^"^^ .^'^ ,/n?ous Assembly of 
served as a member of t u lan o ^^^^^ 

Divines at Westminster who formed th^^^ ^^ ^^^ 

of the true P'^-^^y/^"^" /'ctrcrGovernment was 
rS r^elli^eLt^^'tbe blessings of the 


eipally to consultmg or Chambc P ^^ ^^^^ ^^^^ 

nowledged he was unfit for ury t ^^ ^^^^ ^ 

ber P^actice^X^'Tt si J fied nothing but a waste 
right "^^^"t^^^y^l' ds^nd if they were weak and 
of time or loss ^^ ^°^^«^; "^fj^e descent way of cor- 
^'^C^^^^ t^^eir fancies and biassm. 

enabled him, in a very short time, P 
the head of his profession. o-itating tho 

one of the ^^.^^ ^^^^^^ ^^ 
public mind was ^^^^ f^^^^^f"'„"*ernment. Upon this 
reference to any form °* ""^J^t is incumbent," ho 
question he had - scrupl-^ Jt is m^^^^ ^.^^^^ ^^ 

remarj^s, " ^P^rJ^^^^^^^'i^fsome determinate form 
prove these two ^-^^jT ^^^^^^^^ and, that tho 

of government iS ot mvme ^.^^ .^ ^^ 

forSi for which he f "^f '^f' \%^,^"Ld not the latter. 
For, if he doth only the ^«[«'^^; J^e^t^ovs his first 
his second assertion contraJict. ^^^ ^^^^;^ ^^ ^ form 
assertion; for it -«- ridiculous o say t^^^^^^ ^^^^^ 
of government of divine mstitution, ana > 
not what it is." 




Hale was now called upon to act a difficult part. 
The times were ominous. Civil dissension was rife 
and the publn, questions so conflictinK. that it became 
he duty of every patriotic man to urrav himself on 
the sido ot the party which had at heart, as he con- 
ceived, the best interests of the nation. 

The early prepossessions of Hale evidentiv were 
favourable to the Countrj- partv. He, however, at 
this trying period of his life, resolved to take no 
part in the political contests with which the countrv 
was agitated 8aying,--He proposed to himself as a 
model the character of Atticus," the noble Roman 
who was the friend of all parties in the State when 
Civil War rent the Republic at the closing hours of 
Its existence. I ord Campbell, in commenting upon 
his conduct at this trying period of life, remarks.- 
H.s conduct at this rrisis has oeen mud, com- 
mended but I must say that I think it was cowardlv 
and selfish If he had approved of the government 
by prerogative, which had prevailed for eleven vears 
since parliaments had been discontinued, it was his 
duty to have allowed himself to be returned for a 
Treasury borough, and gallantly to have defended 
the levying of benevolences, the legality of ship- 

CourT'of^^-'i'n*'""'^'^.' "^ *''^ ^'^' Chamber ami 
Wer of r?f Com„„ssion. In his heart ho was a 
lover of liberty and of the constitution: therefore he 
ought to have accepted the oflFer of a seat made to 

a sited r' "''^'^ "^'^ Whitelock. and to have 
asssted them m correcting abuses and bringing 
delinquents to justice." 

To the like effect are the following words of Henrv 
Roscoe Esq.,-- The strict neutrality thus professed 
by Hale, at a period when so much was at stake on 
both sides, IS not a subject for applause. When the 
violent and the indiscreet of all parties are roused to 
action. It does not become the moderate and sensible 
portion of society to remain unmoved, and to pre- 
serve their individual repose at the expense of the 

i ^ 


in i; 

'-X V 



^f/V'iiSipw^S?'' 'ii^-l-JK^f W 


•r. »f tho State At a later period of his life 
tranquility o ^/^^^^^^^^^^^^ of this error, and 

""''tTthe influree w'^^'^h his high character gave 
r in In^deTlr^g to place the liberties of his 

eoui^ry ^P- -^ J;^':^nt men/how readily 
At a time ^^^^^"^^^ ^„a fearless champions 

r ra"r.:;t:7srra=a «.„ o„ . 

"' ^.raffora -^;°^;^^;f '^Ctria. S *e latter 
Counsel for Lord <-ra^en v. Attornev-Gen- 

nobleman, he ^^^ threatened b>the^A^^^ ^^^ 

r„"C ra'fo' W;; treason re an . 
kobseq'uently he was emi^oy^a m every St pr^- 

. by Cromwell for P"'' 7^°*;'^;^- ,^, esto'oUshment 

On the aeath «f»''t,^'"fXthe engagement "to 

tZ'~Zu^^t:C^^oJJ. o, En. 




land without a King r • iio.,>e of Lords," an act 
which was required be ore Comisoi would be per- 
mitted to appear and a. . iu a Coui of Justice He 
was subsequently created .. Jorj,^ant under the Com- 

On the death of the King, six of the twelve iudges 
immediately resigned their offices. The others sig- 
mhed their readiness to continue to act, provided the 
Commonwealth made a declaration of maintaining 
the fundamental laws of the realm, and at the same 
time repealing the oaths of alkgiance and supremacy. 
Ihe SIX vacant seats were forthwith filled. A vacancy 
having occurred in the Common Pleas, the position 
was ottered to Hale. 

Whitelock and other leading lawyers of the Lon- 
Parliament, desirous of law reform, invited Hale 
wi h certain members of the Long Parliament, and 
enlightened jurists outside the House, constituting 
a mixed Commission, to draft and submit a Rill for 
consideration. Hale as Chairman of this Commi'*- 
sion drew up and prepared the outlines of great le-al 
improvements. Among which mav here be men- 
tioned : A general registration of Deeds alTectin<^ real 
property; Ordinances for carrying on legal proceed- 
ings m the English language; the abolishing of 
tenure in Chivalry, with its burdensome incidents, 
and Rules for simplifying the practice of the Court of 

At first Hale hesitated to accept the protTered 
dignity of a judgeship under Cromwell. Pressed to 
state his reason, he frankly told him. he was not satis- 
fied with the lawfulness of his authority. Cromwell 
replied,-- that since he had possession of the -oy- 
ernment, he was resolved to keep it, and woukfnot 
be argued out of it; that it was his desire to rule 

he had selected him; and that if not permitted to 

govern by red gowns, he would do it by red coats." 

f mally his scruples were overcome, largely upon 

i ^i 

XHK C....XAK ..W TIMBS. [VO.- 37 

. • fripnds upon whose judgment 
the advice of cert^-J^^^f "Consequently on the 
he placed implicit reliance^ ^^^^^ ^^^o 

20th day of December 1653 Ha ^^^^^ 

office as a judge in the Courot^L.^ ^^^^ of,-" The 
writ appointmg .^^™ .J^^^.\^^ people of England." 

and a half. rromwell's wisdom 

. Edmund B„rke in alludrng to Cromw ^^^ ^^ ^ _^^^ 

in selecting h.._,» ^^.^ent, he gave to tha 
Hale, saying,- '" ""1 \i,e most brilliant example 
T;in:ere"a:d f^;;^ 'ple" exact justice, and pro- 

Uament, Hale was -\^f^\l^^rTZM^n.eni. To this 
Commons, in Cromwell ssecon summoned 

Parliament by ordinance the F ^^^ ^^^^^^^^ 

representatives from ^^^^^^ , ' ^ xTouse of Commons, 
h! was the first to -^^^ f ^f ^eenth century, 
anticipating the reform biU of the n ^^^^^ 

by disfranchising rotten boroug^^^^^^^^ ^^^^^, ^, 

s^ntation according to the popu 
the constituent bodies. Gloucestershire. 

Five --?;-%rrt for his native county. He 

Hale was ^^^^^^l \" /foUcU votes or be at any ex- 
absolutely refused to solic t ^^^^^ ^^ ^^^^ 

pense; but if ^^f ^^^^Ts 'pe^e^^^ having been de- 
head of the Poll, all l^^!^ expe ^^^^^ ^^^ ^^ 
frayed by the Earl of ^erkf 7^ ^^^^^^.^^ 
House of Lords^ there -onlA^e^noo , p^^^. t 

Bitting in the House of C^'^^^^^^p or Barebone's 
was as impracticable as the p ^^^^^^ 

Parliament, and having «at-o^^^^ .^ ^^^ ,,,,ptly 
and before it had passed a si .. 
dissolved by the Protector. 




Hale declined to act as judge under Richard 
Cromwel] ; but served as a member for the Universitv 
of Oxford in Richard's Parliament until it was dis- 
solved, on the 29th day of April, 1659. 

Hale was elected for Gloucester to serve in the 
Convention Parliament, called on the suggestion of 
General Monk without solicitation or cost to himself, 
at the head of the Poll. The majority of the elected 
members were Presbyterians. When it met, on the 
25th of April, 16^, the Liturgy of the Church of 
England was not allowed to be used, the speaker read- 
ing a Litany for the occasion. Among the important 
acts passed by this Parliament may be mentioned the 
L^rnff-f ' ^^f^'^^^f Military Tenures, with its 
Zfr ll '''^''^' ^^^^«hiPs and marriages, which 
had brought great profit and patronage to the Crown. 

]«r,HT^-?°'* oppressive and burdensome to the 
landed aristocracy. 2 The abolition of Purvevance. 
3. The disbanding of C- .. well's soldiers, all of 
whom quietly settled do. their former ' occupa 

On the first of May, 1660, Sir John Granville, who 
had negotiated between Monk ^and the King pre- 
sented himself with despatches from the King; one 

Th! leH? V T V^' Co^^ons; and one to Monk. 
The letter to the Commons contained the famous 
Declara ion of Breda," offering indemnity for Z 
past and liberty of conscience for the future 

nn/l*^T^ ^^^^ "^""^ ^"^'^^^ '^°th to Monarchv 
and his Sovereign he was opposed to receive him 
back without reasonable restrictions, and bonse- 

hn^7?r/^' ^'"'' *" *^^ C«"^o^« ^as read, 
he moved that a committee be appointed to consider 
the propositions that had been made by the "Declar- 
ation of Breda," that from them they might dTgest 

over ?oT. *r' ^'rS"'^ '^""^^ ^^^^ «t ^o be sent 
was ripf If '"^ ^^'' "^°*^°°' ^^though seconded, 

Conv^f ? "^t ^° .""*^"^«* "^ ^°y^^^y' that the 
Convention decided to invite him over without any 


,t. H 
.'ii ' 




conditions whatever, and to surrender the rigMs and 

liberties of the people into ^.^^f^^^^^X gat s 
1660, Charles IL, was proclaimed King at me g 

of Westminster Hall. , j *^ t\,p 

All the errors of his reign may be imputed to the 
f. Uv of inviting him over without exactmg 
supreme folly of ^"^^^"8 " conditions, 

stipulated terms or properi\ gu» 
Charles was accordingly invited over and 0-^1^^^^^^^^^^^^ 
day of May, 1660, entered London ^ith great demon 
strations of ioy. ,„^:„p. wbiiohall 

was to -v-\.^-;y;^f t^ garter and make him a 
crown, with the order otu J ^^ ^^^ further ro- 

"''°'. /wi he^t e'of the Duke of Albemarle. Bax- 
warded with the title 01 u.« several Presby- 

tPr the noted nonconformist, with se^eIdl 
re^larBH-ines were wH. an e,ua^^^^^^^^^^^ 
copalians, "fl^Court Chaplains ^^^^^^ ^ 

IX^^^ ^& Ja Je to t,.e te™s 

ven«on Parliament to deal was hat o, chu d, 
Kovernmsnt. Monk was a P'"°5ter an. - 
festoratioa was effected pnnc.paUy b^- ^uej. « ^^^ 
tevians, they had «''»"«/°P'%';c"«rch government 

r„";te*rArchbi^,h„p Ilshe^to which the^P^^^^^^^^^ 

elected betwee-. the, Episcopahans «"d J"?],, 
to'ans, not by bringing over one party to the oth 


conference now took piate uLiw^^^ii s,mnn" 

conieieuce epftlement agreed upon. Amon- 

l^.tn^'uVaVftlplted/that subscription . 




the thirty-nine articles was not to be required for 
ordination, institution or induction, or for degrees at 
the Universities. The Presbyterian leaders procure(' 
a select committee to be appointed to frame a Bill 
Ihe committee met and appointed Sir Matthew Hal- 
chairman, who framed and introduced in the Con- 
venhon Parliament one in conformity with the stipu- 
lated terms. Before the Bill had reached the com- 
mittee stage, Lord Chancellor Clarendon proposed 
and the King readily consented, that the author of 
the Comprehension Bill" so called, should be pro- 
T^\^- i^'J^^ position (a vacancy having occurred) 
of Chief Baron of the Court of Exchequer. Such an 
appointment would disoualifv him to sit in the House 
of Commons. On intimation to Hale of the purpose 
ot the King by Clarendon, he said,—" That if the 
King could have found an honestor and fitter man for 
the emploj^ent of presiding in the Court of Exche- 
quer, he would not have advanced him to it; and that 
he had, therefore, preferred him because he knew 
none that deserved it so well." 

After some slight demur Hale accepted the- honour 
thrust upon him. It was generally admitted a more 
iaudab.e appointment had never taken place in West- 
minster Hall. At the same time it was suspected 
that the appointment was promoted bv the adroit Lord 
Chancellor to remove from the Convention Parlia- 
ment the framer and supporter of the "Comprehen- 
sion Bill." The influence of Hale was so great, he 
would doubtless nave carried it, had he not been re- 
moved by such an artifice. The dependants of the 
Court, under the direction of the Secretary of State 
Morrice, made a strong speech against it, when com- 
mitted, saying it was inconsistent with the true doc- 
trines of Apostolic succession. It was defeated on 
tht- second reading by a majority of 26 in a House of 
340 members. The Convention Parliament was 

TOl. XHVII. Ct.T. — 24 

-1: -I- 


[vol. 37 

- THE «JAx..v*/*~- 

-Id in the month of November, 
S!t:li;^/fi^^^^^^^ daughter Anne 

.S:ltr of the King had ma e^u^^^^^^^^ ^..^ch of 

the Presbyterians, ^nd ^ ^^ principles, after the 

England o^/^^^^f,^ /Laid In the first Parliament 
manner of Archbishop Land^ parliament or 

of Charles IL, ^^^^."''e Restoration, which lasted 
the Long Parliament of the Kes 1679, was 

from May 8th, 1661 to J^^^ > ^^^^^y, called the 
passed the odious Act ot no ^^.^^^^ 

?;orporation Act, ^^^f ' f^^| covenant, ordering 

nonnced the Solemn ^eag^^Foir Acts, all equally 
ittobeburnedbythehan^am were passed 

odious, called the Clarenao .Chancellor, the 

through Ithe influence ^^^^^^^orp ration Act of 1661; 
King's Prime Mimster-Thecorp ^^^^^^^^^ Act 

^e Act of Uniformity ^^ ^f 2' ^h' i665. After the 
of 1664; and the Five ^xle A^/;, the rule of the 
downfall of Clarendon and under ^^.^^^ ^^^^ 

ir r S.t'tTo.'^otT^^^ been .ept neither 
to' the ear nor to the hope ^^ ^^^^ ^hief 

Hale continued to ^old the PO. ^^^^ 

Baron of the Exchequer Cour^^r J^^^^ ^^ 
on the 18th of May, l^jl^bej^^ P ^^^^^ 

, office of Chief JnsUce of the C-r ^^^^^^ J,te ability 

Rules f o? his judicial guidance. 

T^NOS Nbcessabv xo be ha. 
IN Bbmembbancb. 






stro^Jl!"tat Implode a,Tr T "'"' ""■'""'a-'ding or 
strength of o"d " "P™ "■* direction and 

aside :^;:i: ;tx:::ii t irx^ -""""'^ '-^ 

however provoked. * ^'"^^ ^^7 to them, 

abot,^*'iiL'4';^°'^^^;«t upon the bn,i„e.s I am 

seasonable, an/ interrnpUon, ' "'°"*''" "^ "- 

6- That I suffer not mvself In h 
«th any judgment at all mL 1 ," I"'<'P»ss<'ssed 
both parties be heard. '"''' "'"''"^''s, and . 

a eaure!''lut''::::r:.rm':sS"" '" *S "^^'""■'-^ of 
whole be heard. ^ "^ unprejudiced till the 

8- That in business canital fl,„ u 
prompt me to pity yet f„T.' fi *?"«'' »y "ature 
a prty due to the oountrj" "•"' """ '« «!=» 

soientilL:' 4te°:n'riS™" ,'"d"^"''"^^'-'- -■>- 
ment. "" ""■" " diversity of jndg- 

PooiVfat"toTh?rioh1n""'' rr''^'""' "> '"e 
11. That popular 1 P . ^ "' ^'"=«'=^- 

have no influ'Zf u^p^n a^ySinT ^d"' • " "'''^'^ 
distribution of justice '^""°« ^ do in point of 

thii'-sfLga's^l^'^seT?"' T '"' -•'• »^ 
the rules of justice ^ ' '" "^"''"y '"^<^ording to 

e«nfto"n^:;;rrxi:itt,^ -^^--^ -•' •» - 

-^henn^.^^trm't'sur"'"."""'^ '" ^"'^ 
justice. ™ *"*'"''• moderation is no jn- 

-verityllu^fcf "' "'"^' " "" '«' "e evident, 


: 3n 


. > »■ 

= -fy 


fvot.- 37 


o^ r.uations of what kind 

le. To abhor all pn-^^fntS deP-ding. 
soever, and by wbomsoev er in ^^ interpose 

'17 To charge my servants , 1st, n ^^ ^^^^ 

te fitter for bnsmess. ^^^ ^^^^^^ be 

courts of '«-• „^;J^'"He was oJtej; «»' - "f^Ja 
in Courts ot Equity-^ chancellor or »« 

'^"^^f-oate and difficult cases. He r« dly » ^^^^^^^ 
in intricate ana y „as o'™'"l the pro- 

the doctrine, hat C ^^ ., ,4, ^1>«« g^<,t^„e 

and not f^*'^; '„' seemed iW""''™^',^!,!' rem- 
cccdings ot Chancery ^ ^^^,^ ^nd s»«.S«si 

subject, he never taJed ' ^^^^^^^ ^^^^ o;'»|;°„,',v 

.aial »--f :nd dtuUns the f^^J^^^o^. 
observations ana ^^ „{ those ^__ 

t^trXi^l' nts governed at this day J^ ,^^ , 
•L^redlpon Equity -: P-^J^Teduce it to -Ha. 

consequently did ^ he ^^^^^ ''/retw «a. 

established V^^'f'X^ the stricture of the law 

all future cases. By Mm oonscience. 

never allowed to P'^^"'' f °^ , „{ two wretcho.l 
The trial by Sir Matthew HaU o^^,^_ ^ 

,oIen in «f ' ^f o V^*""' ^^Thifre^ " 
;«<1icted for the crime oi aiscredit of ws r^i 

^pnted npon, mnch to the a ^^^^ ^^p,,,^ 

commented np ^^^ ^^^^^^ ^f t^e ^^'^ ^^idence of 

liable and impartial oy 





believed the whole transaction a mere imposture. At 
the conclusion of the trial, Hale did not sum up the 
evidence, but left the case to the jury with the bare 
direction of his belief in witchcraft. The prisoners 
were found guilty. The judge, after expatiating 
upon the enormity of the crime, declared his entire 
satisfaction with the verdi -t .m»l admonished them to 
repent and sentenced them lo be hung. It is said the 
bewitched children immediately recovered and slept 
soundly the night after the trial. 

Lord Campbell, although a great admirer of Halo, 
coimiients thus severely upon his conduct in this case, 
— "I wish to God that I could successfully defend the 
conduct of Sir Matthew Hale. I fostered a hope that 
I should have been able, by strict inquiry, to contra- 
dict or mitigate the hallucination under which he is 
generally supposed to have then laboured, and which 
has clouded his fame, — even in some degree impair- 
ing the usefulness of that bright example of Christian 
piety which he left for the edification of mankind. 
But I am much concerned to say, that a careful peru- 
sal of the proceedings and of the evidence shews that 
upon this occasion he was rot only under the influ- 
ence of the most vulgar credulity, but that he violated 
the plainest rules of justice, and that he really was 
the murderer of two innocent women." . . . How 
much more should we honour the memory of Hale, if, 
retaining all his ardent piety, he had anticipated the 
discovery of Lord Chief Justice Holt, who put an 
end to witchcraft, by directing prosecutions against 
the parties who pretended to be bewitched and pun- 
ishing them as cheats and impostors." 

It would seem, his conduct in the case of John 
Bunyan, the Author of The Pilgrim's Progress, is, 
likewise, open to criticism. Bunyan had been 
arrested while preaching at a meeting in a private 
house, and imprisoned under a charge as " a person 
who devilishly and perniciously abstained from com- 
ing to church to hear divine service, and a common 

" 1 




;,Uolder of. unlawful -^eVo^^S^^^^^^^^^^ 

realm. The 3"s"'^7 g.,ient evidence, found him 
^'•u"' 'rlThaiman pronounced the following 

^Uty and \^^^^^^f J^ad back to prison and 
udgment:- You tnust ^^^^^^^^^ ^^^ 

^^''tv, 'id i vou Tnot submit to go to church to 
months' end, if you ao preaching, you 

hoar aivine service, ^^^j^^^^^^"" after such a day 
must be banished the realm. And it a ^^ 

as shah "^aPP7*«t\^^ound tfcmLver again 
found in this realm, or ^^ tound to ^^^^ 

without special ^''f'^^ZuTonX^^y'' There 
stretch by the -^^^^^^l^^^^^^^^ s'up.ort this 

was no clause ^^ the statx _ t ^^^^ ^^ ^^^^^^ ^^ 

sentence. His -ifc aPpUc ^ ^^^^^ ^^ ^^^^.^^^ ^^ 
his release. ■ bhe was xoiu ^ ^^^ iudges at 

"-» rVrSes wfr'sTrMatthew Hale and Mr. 
soned. The .Images wei enquiries 

Justice Twisden. ^^l^' ;i„\r;';sra ^ot spirited 

worse durance. , . , „<? n^^r^ 

yan'8 case, remark^:- L.Hle do we ^^^^^ ^^ 

our permanent good. Had Bm.5 » j„„,,, 

charged and »"»"«//» .^""L^'fiiiSg up his inter- 


• ^ Tli^ nrison-doors were shut upon mm 
kind, ine prisou uu g^'ernal world. 





first discovered by the lowly, but which is now lauded 
by the most refined critics; and which has done much 
to awaken piety, and to enforce the precepts of 
Christian morality." 

Lord Macaulay, in rpferrin^ to the saying of 
Cowper, that he dared not name John Bunyan in his 
verse, for fear of moving a sneer, said:— "We live 
m better times ; and we are not afraid to say, though 
there were many clever men in England, during the 
latter half of the seventeenth centurv, there were onlv 
two great creative minds; one of these minds pro- 
duced the Paradise Lost, the other the Pilgrim's 
Progress." Macaulay further said :—" For mag- 
nificence, for pathos, for vehement exhortation, for 
subtle disquisition, for every purpose of the poet, the 
orator and the divine, there was not a book which 
shews so well how rich its language is in its own 
proper wealth as the immortal work of Bunyan." 

Sir Matthew Halt- jmssessed a Iiighlv sensitive 
conscience, tinged with a certain degree of supersti- 
'k"'^ ^'^ ^^*^^''' ^ member of the Bar. it is said, 
abandon .;s profession on the ground that its prac- 
tice was not consistent with a strict adherence to 
truth and justice; he could not understand the reason 
of giving colour in pleading, which, as he thought, 
was to tell a he. When admitted. Sir Matthew Hale 
made a resolve of never appearing as counsel except 
on the right side. This he must have found imprac- 

!. ifi.A }^ 7^^ '''""'^' ^°^ t^e Ea^l of Strafford, 
in 1640 and also for Archbishop Laud, both zealots 
of the doctrine of the Divine rights of Kings, which 
Hale. repudiated. An entry made in his Diary, on 
the Sunday following his sentence in the witchcraft 
T^\ ^rr ^^^°"r-to t^e charge of superstition. He 
thanked God for his mercy in preserving us from the 
malice and power of Evil Anrals, in which he refers 
with extreme complacency to the trial ovpr which he 
had just presided at Burv St. Edmund's 

[i I 




Ha,e ... . most i"-";P«'i'j£, tutid. 
of bribery often 7";;^^,''™i ^^Ltr ho iecam, a 
_"\nen he bought anv »" '^"" » . , j „ ,he 

i„a«e, he not onb- «"»", -'J^', ".^.l vendor, 
price, bnl .n».»ted ™ •'•,;3,,";,,,,„.,M. have suit* 
tre'^.t'e/.tni/'l';;. favonr beoanse they 
had dealt handsomely by him. 

„a,e. P«h.i.hed P-'-f ^j^rr^^d VrfoJnd 
main as monuments of h.s diUKen .^ _^ 

learning. His h,» tory "f '>» P]p,"J'„, ^ existed in 
^^piete <^Kest of «.e (^^ ">-n,. ^ ^^^ ^^ 

•n'twXe "raptr:. is worthy of .he highest adm.a- 

"°"sir Matthew Hale, as a law>-er, and especially as a 
Constitutional lawyer, stands uur,vaUed^ 


- oTctcirKeC r^ -jv;t 

of the grandest and best men who ever sat m judg, 

^n^l^hletCfl tX ::U of his Character, as 
for the profundity of his loarnmg. 

Sir Matthew Hale's 'i-'^f'^^Xcl^'or 
^^JX-^^^^ Hr^t^n'■C cLt Of C.m^ 

-a^ ^LSrtTu^^rh^f Advantage, so 




Pandects, and (^de of Justinian, with tho best com- 
montarios on those immortal compilations. While 
free from every other passion, he wa.s constantly 
actuated by a passion to do justice to all suitors who 
ame before h.m. He was not only above the suIpT 
cion of corruption or undue influence, but he was 
never led astray by ill-temper, impatience, haste o 
a desire to excite admiration." ' 

«t. John, N.B. 

Silas A l ward. 


i 1 





[vol. S'J 


Much has been said and written^«>ently on t.^^^^^^ 

'-' »' r"°,^ft; nd^ mtn^Tbringing it abont 
tages of uniformity ana tne m . .^ reference 

h-e usually ^e- d^s^s^^^^^^^^ 
to commercial law. It \'.^'^^^"„^iformity in property 

cial law has been thought desirable, l^e 

Lnse it is the ^"'-^Ifi'jSXd; independent o£ 

parts of the Bmpure-eaeh ^^^^^'^ the inconveni- 

L »ttar-that h^^^S:^^' C"«^l tr«nsac^^^^ i„ 
once of having to consider » «™ , q.^ second 

the light of two or «>«« ff *^7„;\^e most part con- 
reason is that oonmierml law for *» jn P^ „j ^, 
sists of statnte law, and so far as rt a ^i^jntory enact- 
,aw is readUy >;el"«f^ °J^« 'fTprictical pnrposes, 
ments. Case law is a'«»<'y' "; K^ ^le Empire in 
uniform thronghont "'.''«? P."^; ^ i*\at ha« not 
„hich the con»non^w IS in for^^so far^^^ ^^^ 

tlt:lXTS^'J^^ -nd this statnte .a. 
becomes uniform also. «„tside commer- 

Now the law «1»«°« ^^P^aw rS^Ct property 
cial law, and parUonlarly the !"'«'» 8 ^^ 

in land, does not call «» "f *f j/fij^t of the above 
described as standardization for tj^ " ; ^n„^, 
reasons; transactions with tod "ft require 
ledge of more than one ^'l^'^'^Tl'ler reason for 

considered-are the ««fP;«°; If^^thdng in statu- 
standardi.aton--astotheru..,of to ^g ^,, 

tory f orm-.s also ^ '^^^ ^^j ^„ ;,, as a whole. 
rr^SreSlw on case law, and also 




is not so readily reduced to statutory form as is coni- 
7c^:if'Z .'^^^'•? "^'^«^«ver, circumstance wMch 
ZT^""^^^^ '""^r *^" ^^^"« «f this distinction he 

reasons for standardizing the former operative in 
favour of standardizing the latter. 

Where a number of legislatively independent juris- 
dictions are in close geographical proximity-as the 
Provinces of the Dominion of Canada, or the States 
i1h Commonwealth of Australia-transactions with 
meZt ^*^^V^;P«rty between persons residing n 
different jurisdictions become matters of frequent 
occurrence. Such transactions will often neceSuate 
he consideration of the rules of law bvwhTch a par 
ticular transaction is governed in more Ihan one juris 

fur SfoV^^f '*"° 'V'''' ^^^^ -' a'resident ii oue 
enSed nTn'^'ir^ '^''^^^ performance of a contract 
"ctlo^ "^*' ^^^^^^^* *^ ^-^ -tuated in another 

^ Again when an extensive alteration in the law of 
property is carried out by statute in more than one 
jurisdiction the argument for standardizing «>mmer! 

the case law growing round it automatically becomes 
uniform also. The importance of this uniformity in 
statute and case law is illustrated by the rSe anS 

ftranl "'"'"'^^" ^' *^"^ - C-a<^- -" " 

i^J^"" i^"" "' commercial law is concerned a higher 
Ideal than uniformity is unification, and in some 
branches-notably as regards bills of 'exchange llw- 
this ideal of unification has been in some degre^ at 
ained both in Canada and in Au^ralia by mea^s of 
federal legislation. Property law so far differs t'rom 
ommercial law, intrinsically and constitutiona Iv a^ 

r^t^^■.^^^^^•'''^ P*"*' ^^ *h« Empire will in all 
probability continue to legislate independently, on the 
subject of property law and especiallv land law This 



however, is no reason why the advantages of a uni- 
form statute law-automatically securing a unifom 
case law-sliould not be had with respect to such 
branches as can be suitably dealt with; registration of 
title is a typical instance of such a suitable branch. 

The position of registration of title in Canada 
affords the best possible illustration of the way m 
which the advantages of a uniform law might have 
been secured. A great opportunity has been lost, and 
the disadvantages of legislation ^f'^S<^^rT^e.^^^'^ 
a haphazard manner by different legislatures though 
the principles underlying it and the objects to be 
attained. are substantially the same, wil be clearl) 
seen by some observations on the different systems of 
registration of title now in force in Canada. 

The above criticism also applies to the differences 
in the Australasian systems, but in a less degree The 
very fact, however, that the statutes in the Australasian 
iurisdiction differ inter se less than those of Canada 
would make the task of obtaining uniformity by means 
of suitable amendment much easier than in Canada. 

In only two of the Canadian Provinces-Quebec 
and Prince Edward Island- is there no system of 
registration of titles. The eight separate systems- 
those of British Columbia, Ontario, Nova Scotia, New 
Brunswick, Manitoba, Saskatchewan Alberta, and 
North-West Territories (includmg the Yukon Dis- 
trict )-represent developments from three different 
models. The British Columbia system is develpped 
from an original model, in which, however, wha is 
- now known as the Torrens principle is a leadmg 
" feature '" The Ontario -system is based on the l^iUg- 
lish Land Transfer Act, 1875, with some of the amend- 
ments introduced by the Act of 1897, and the system 
of Nova Scotia and New Brunswick are modifications 
of the Ontario system. The systems of Mamtoba, 

Torrens System, 24. 


Saskatchewan, Alberta, and North-West Territorios 

including the Ynkon) are taken direct from Austra models and resemble them closely foTtlt mo^" 

British Columhia.~The statutes now in force are 

and as2ate reS rflT " ' --^-ation of title 
8tTnm*.r,+ ""^^ /^^S^stry, and registration of every in- 
strument (whatever the owner's title) is esspnH«ifL 

s warranted as in the Anetralian systems", ab' 

up for ..xC"":M„b wVdTa:te';Tei:[:e::! 

simple. Losses incurred through resistration J Itl 
wrong owner with 'MndefeasiMo "^H™* '™ "'*: 

by caveat Till,, !f f J but may also be protected 
ihl» "\i!i '° '^"^ registered with " indefeas 

'We title cannot be acquired by length of p„° e/sIoT 

iQi^ i \ ^^^' ^^ an amending Act of 

such as the ReXryAj^Twu f Zf I":."'"'' 
..eorporated in the registration statut" T, e' pr n^cf™'; 

(19ie?:53^Crl\T^,[\«Sl A- C 318. 324: Heron v. L«ro„<fe 


!*■ ^. 

'^ 't^;*t 





I I'i* 




[VOL. 37 

Acts have also been laid under contribution to some 
^tent The English Act has b^n f oUowed m settmg 
up three kinds of registered titl^" abs^lute^^ 
"qualified," and " possessory,'' in expressly allowing 
transactions off the register, and in requiring ' notice 
onlv of leases to be placed on the register. But statu- 
tory instruments are not required (as they are by the 
English rules) to be under seal, whilst the rules that 
have been made are not nearly so elaborate as m Eng- 
land One source of confusion in comparmg the Bri- 
tish Columbia and Ontario systems is ti^at an abso- 
lute " title in Ontario is equiv^ent to the i^defe^ 
ib e " title of British Columbia, while the British 
Columbia - a.b. lute '^ title is merely the equivalent 
of X Outano " possessory " title. Trusts are not 
recognized on the register, but °^yJ>\P^°i«^*f^Jj 
restrictive entries. Mortgages are effected by charg- 
ing the land instead of conveying it to the mortgagee. 
Thle to land registered with " absolute " title camiot 
be acquired by length of possession. 

Nova ^co*ia.-The Land Titles Act (1904 3 & 4 
Edw 7 c. 47), is adapted from the Ontario Act, but 
fs ^together much slighter, containing Uttle more than 
half the number of sections. Trusts are expressly 
recognized, but no provision is made for cautions or 
caveats. Although statutory forms (rf transfei and 
mortgage (not under seal) are provided, the use ot 
these is not obligatory, and ordinary aeeds may be 
registered. But registration is essential, and an 
instrument only operates as a contract ^^^^^l^^^ 
tered. Down to the end of the year 1916 the Act had 
only been put in force in three counties, and seems 
to have found little favour. 

New Brunswick.-This Land Titles Act (1914 4 
Geo 5 c 22) is even slighter than that of Nova Scotia 
fr^m which it is adapted, consisting of l-s than hal 
the number of sections. The registered title may be 
either absolute or qualified. No provision is made for 


Some of the m^rfernrt If ^ "T.T^' "'' »'• 
arc: The reristered Iw^I u. *'' ''"'"rtory system 

and only onfu^f „reS,trf"'U7"''"''''' ''''^' 
transfers. mort<r«o«. .„Ii ''"° " recognized; 

of instruCts^rnCribrfr" ff^ "^ "'"-^ 

Only ««i«tered;°rLtr:id „tt™a«"tebr'''^ ""]* 
are not recognized on the reSrT "v.'"'"' 

twted by caveat- losw- tht^ u ' ' ""^ ^ P™- 

are mad'eXd to'r^eroSVsZt'''^^*"''"'"' 
mortgages are effected by rchw^'^i'"'^ Property; 
conveyance of tho io„j "J' / cnarge on, mstead of a 

Anstralianmo?eirJdL°t '''?"''""* '^''''^ ^e 

amortgageritrt,tzt;t:trtrar? """ 
subject to judicial control «^n,iZ.r ??°""5' »« more 

contract between CpartS Uf eT ''•''.""''1'"''' 
cannot be acnired byC\ 'of ttZ^''^''^ '""'' 

with a section inT'«a(lw"'®'*.'™<""^"»A'='=. 
1914. This system difff • "^ 'i'nendment Act. 

details frL tha^J M J^' co-'Mcrable number of 
arran^m^t of tllt^Xit'dw'' "^ l"^'^' ■"<• 

P n, nowever, occurs with respect to title by 


I i 






^f„„\1::tnr;™rw:rbl m favour ^ the 
or against the registered owner. 

Alberta.-Tbe statutes in force are the Land TMes 
^.~«tes of 1906, 0. 2*). -d » amendmg A^;^ 

'''''^TXrJmi^^toZttiL and ar- 
ment Acts (1907 to lyio;. ^' ^^.-^ ,-Hie in sub- 
.anged differeutty hese sta^^^^^^^^^ 

S by loTg ^ srL^af: t^t the registered owuev 
to be^th^e subject ef decision in the Alberta Courts. 

N«rth-West Territories (inclvdmg Yrtko«).-1be 
.tat^::! in f^rL are fj^m statute, of th^~^^^^^ 

rX^tl^lly^trthTstof Saskatchewan and 

except by proceedings in the Courts. 

The points of likeness and difference in the vanous 
ot^tttes Lve referred to are, of course, merely lUus- 
1£T, burthey are fairly typical, and suggest some 

•^"re "fflerro^s between British Columbia and 

, Belize Esiaie Co. v. QuiUer, [18971 A. 0. 8^; Barri, V. 
(lOlD.ieW. L. R. 433. 
« Barris v. Keith, supra. 




^Ihl F^°r u^"*^'^ ^^^"°^^^* '' b«««<i oii the model 

found fSir''"^ r' ""'^^ *^^^ «-«t««^ ^- b-n 
lound tl-oubleeome and unsatisfactory. The placinir 

register ot ordinary assurance from the register of 
title proper. If the Ontario and British Columb a stat 

^:z dSt^d^x"^^ T -"'^^^ 

systems of Ontario and Manitoba it can hardlv hi 
doub ed that Manitoba is the preferable as represent 
mg the Australian (of proved Dract.V«l ? I' 

whilst Ontario represlntsX En£ sf ^odrThTch' 
has be very far from prfcticairsuc'Jsfut 
lurnmg to the group of Manitoba, Saskatchewan 
Alberta, and North-West Territories, he only import- 
ant differences ^nter se of those above referred^ are 

hZw ^ r'r' *°. "■""■'S^S" P'»«edure, there can 
the N„tt wt T "'•* *'"' """'""ility of amending, 
lue JNorth-West Territones statute by (civins a mort 

on of t^tle ^ ^^ ^^' ^r^^^ra^ni preventing acquisi- 
tion of title by possession might well be s».crificed in 

VOL. xxxvn. 0.1,T. — 26 


of statutes of limitation. ^^ 

^"f'^ ^''^t/ei'SfT.Xuons -oept Nova 
drafted for all the e'gM J"' » . ^ been done in 
Scotia and New B-'^^-*;- ' "; J.tration of title 
these two Prcvinces in to way ot P ^^^^ ^^^^^^ ^„^ 
that the adoption of a new mou 

be difSeult. .totnto could only 

AS already stated, a/^^^.^^hf ptvi^ces. The 

be adopted by agree«(ient ^"J^^| ^^^^^^^i ^e obtaine<l 

best and speediest ^^^f^J^f^^l^!^^ Lding itself 

sion and enart it as a statute. 

Perhaps an even f f ^uM be e^^^^^ 
on a uniform draft «t»^^"^\^^^^^^^^^ This 

the Question of ^mending the new .^ ^^^ ^^^^ 

question need -not necessarily be sett ^^ ^ 

•nstance, hut it ^y^^^t./fitrari^^^^^^ the adoption 
order to retain the benefitsj^^^^t^^ ^^^^^ .^ ^^^ 

of a uniform «^^^\^'/" ^^^^and not enacted by 
gible, be treated m the ^^"^^^''fj/^ misrepresented, 
any Ue Province un^^^^^^^^ ,,^ 

preferably by the ^^^J^^^^ ^^,^ found to be im- 
scheme of uniform »°^f"**'^^"\^ y.. for each Province 
practicable, the «l^/rr'^ndPT>endentTy^d t^«^* *« ^ 
?o pass amending «*-^f ^^te's f oT^^^^^ '^'^^ 

general revision in t^^"^*^^^^^ of amending the 

-^j."att srr:«Sthe«cta 

f Itl^dSiriSiLi^irn^rwith aa^nta. 
" ;rs::;tt«f ««ist.a«» of tit. iM«;^^^^^^ 


would not only be intrinsicallv valuahip «» » v,- • 

uniformitv could h^ ^ii^..,-^^ l\ ^'^"t'^\^y ^a^- If the 
extent, the result Zw^ ' """^ <»>i>si<ier.ble 

litigation and rep„T4 ^f ^erST"* '" '^ 
fonght ont in the ConiS becM8» of f f ^ k^ " ^"'^ 
on theconstraotioa of statn?^, thltlifff ^7^- ''V^ 
other statutes already judWa lytte "^'t? '""' 

of eo..^STa^\;%'^Xt\":.l^''-'^ "■ '"^ «''« 

Lincoln's Inn. 

James Edward Hoog. 







[vol. 37 


Monirea.' the flm «»« ■» _"•' ^911 went to Canada 
is of interest. The Pl""^«^^»//,i{ ^ith the general 
on pleasure and stayed «* Montr ^^^^^^ _^j 

manager of.the «ff»tve,tae"t of money in Can- 
%rr^rgav 'm™ rfolwmg let.ev of 
fctiln to b anch managers of the bank:- 

^Z. .< I-"""; .^j;^* Ci' HSiu'c. .r .«c r»" 

,1U De BO"* •■"»«' to P»" '° .. . ■ t> r 

Snbse,nently the plaintM -t^t^^^^^^^ 
and called upon the -Jf f **"" %;, advice, hon-stly 
renting the «'»™ '^J^^^t a moSgage to seenre a 
eiven, invested $.ja,uw up" „„.j._,.„ and debtors 
foan o a Canadian ■^fy^l'^'^Ztorm of oral 
„, the bank. The wa m he __^^, 

representations as to the ««>" »' ' having 

J merits of *!■« --t" ,t„r prineip^, tL plain 
faned to P»y """'V'" 'Lang damages for negh 
tiff brought this action, -^'rf | °; ,* his banker- 
gence and breach of duty wMe act ng^ ^^^ 

Ind advisers. Counsel for hejlamUft ^^ ^,^^ 


.Th« aim Of the Editor is to make this '"'J^'^^J *^ d«:i-ion^ 

Act. 1906, are not w"*""*'*! - (^.3.) 380. 
» [1917] 1 K. B. 409; 86 L. J. tB^"-' 



the above leUer of introduction did not give any spe- 
cial authority to advise the plaintiff, and that, in Lord 
Cozens-Hardy's words-- it is no more than a letter 
of introduction given to a stranger who was visiting 
Canada on pleasure." The defendants, moreover, 
invoked Lord Tenterden's Act (R. 8. 0. 1914 eh. 102 
sec. 8), which enacts: — * * ' 

' No action .hall be brought whereby to charge any p«raon upon 
or by reaaon of any repreaentetlon or aaaurance made or given 

t^^/^ I "L ""'*i°* '" *•'• character, conduct, credit, ability, 
trade or dealings of any other person, to the intent or purpose 
that such other person may obtain credit, money, or goods upon 
(Sic) unless such representation or assurance be made In writing 
signed by the party to be charged therewith.' 

The Court hold unanimously that the above sec- 
tion is not confined to fraudulent representations, or 
such as would support an action of deceit; and that, 
inasmuch as this action was brought bv reason of a 
representation or assurance as to the credit of the 
company, which was not in writing signed by the 
party to be charged therewith, as required by the 
above section, it was not maiatainabie. 

Adjoi^Ang owners of farms under same landlord- 
Horses straying from one to the other — Liability. 
In Holgate v. Bleazard ' the plaintiff and defendant 
held adjoining farms under the same landlord. De- 
fendant's horses strayed on to plaintiff's farm 
through the fence being out of repair, and injured 
plaintiff's colt. Both plaintiff and defendant were 
bound as between themselves and their landlord 
unaer the terms of their respective leases, to keep the 
fence m repair. It was held by the Court, (Eidley. 
and Avory, JJ.), that the defendant was liable upon 
the grounds thus expressed by Ridley, J., at p. 446-7 : 
'In my Judgment the rule Is correctly stated not only In 

faw u Zt 5h ''''*" ",*' ^""^ ''"^ that-' The general rule of 
law Is that the owner of cattle is bound to take care that they 

*L. R. 1 Ex. 266. 

• [1917] 1 K. B. 443 ; 86 L. J. (K.B.) 270. 




trel^MB on the plalntirB Und. 

i ««* /n flssiflw without leave — 

Breach-Damages ^^/T^^^^ ^f Eowlatt, J.'s on 
Ltd.' is an interesting judgment o ^^^ ^ 

these subjects, especially t^^^^f/^^t^i^i^g a coven- 
company were a..t^nee of a lease^ ^^^^^^ .^^^i,. 

ant not to as.ign ^^^^^^^^ *J^^^^^^^^ Uqnidation. 

ing. The company ^^^^^ ^^^ J ^^^ lessors' consent, 
in which the ^/q^^^f ^'7^,Xent person. Rowlatt. 
TTm tt rc^n^tuVatrLch^f the covenant 
iotrassign; and as to ^^^^.^ ,... _ 

inly rent now In arrear '^f^ ^ to "^PP^^^ ^'^ ^"f "f^m°ls 
breaches of covenant. . '^/^ "^^slstlng. whereas this claim^ 
tentlon I must trf t the ^^^^"^^3 ceased and d«te'»*^«'^„S 
upon the basis that th« ^r^^^J^s of covenant In a If ase which 
action Is for damages for or«"7° " . assess their damages 
Ji come to an end. The Pl^l^tlfls muBt aj ^^ ^^^ 

"uiS: rif1h:/h"a5^\trthrfefe^arJ^^^^^^^^^^^ --ead ;r 
Sr. " :US^ Of InfeHor^^^^^^^^^^^^ ^. ,.anclal 

sure of damages so stated mvoivea 

• [1917] 1 K. B. 480. 


JSlIi?,h' ^''•/•'•'"••n" «<» their Malgnw re.pectlvely. A^ 
•umtaf the Mflignee to b« ln«oIr*nt aeeordlng u the defendanu 
h.Te more or leas mean, there will be more or LTdwJJe iMA-v 
are uuHout means tkere rcill fte no damnfft. v^^^^; I^Sm 
can come to eome agreement the liquidator muatittJnd and 2t! 
evidence aa to the poaltlon of the defendant Tompany^ '^ 

Obstruction on hif/huw, hy act of God-Liability 
of adjotmng occupant. It is probably right to men- 
tion shortly Hudson v. Bray * as a decision by Ridley 
and Avory, JJ., that where a tree, blown down in a 
violent gale, amounting to an act of Ood, has fallen 
across a highway so as to cause an obstruction 
thereto, the occupier of the land upon which the tree 
was growing, is, apart from statute, under no obliga- 
tion to light the tree or warn persons passing along 
the highway of the existence of the obstruction. 

^erger — Intention - Evidence of. In In re 
Fletcher Reading v. Fletcher^ in the number of 1 Ch' 
tor April we have an interesting decision of the 
Court of Appeal upon evidence of intention of parties 
that a merger shall take place. To .state the facts 
concisely, but sufficiently, Emily died in 1915 intes- 
tate. The plaintiff was her heir at law. The defend- 
ant was her legal personal representative. At the 

ir/I !I ^^*^ '^^ ^°^ ^^^ ''^^''^ Edith were en- 
titled to the property in question in fee simple in 
equal shares as tenants in common. The plaintiff 

that at Emily's death there was subsisting a term of 

that he was entitled to one moietv of the premises 

,1 ^^l ^T^^"^^^ "^ ^^' ^''^- ^he plaintiff on the 
other hand, contended that the term^had merged in 

was whethr"; r^ ''^ ^'^^'^^^^^ *° ^^ ^^tei^i-" 
Tw R S O 1QM . for '^' J"^^«-ture Act (see 
now a. S. 0. 1914, ch. 109, sec. 36) enacts that:- - 

• [1917] 1 K. B. 820. 
' riMT] 1 Ch. 339. 







388 THE CANAfilAK LAW TlMEa [VOL. 37 

.^«e .hall not. after «»« -""-X'^Utr^h^^ieJil"^ 

guished in equity;' 

and Courts of Equity had regard, iu A' r"!':^"^ 

there was merger. At the same \iiii« 

take place. Now in tlie case before *h_c Court Uie re 

versiL in fee «i-I^ »' '^^Hnimf a^fnlXTn 
1Q14 been conveyed to Jlimiiy »uu xuuitu » ,j • <.„, 

«orand in'oecember, W"- .*« '-^^Uy »a 
est referred to had also been assigned to Emily ma 
Edith as tenants in common for the residue of the 
7,™ Thi. of course, effected at law a merger But 
Sl5 E^iy aS Mth purported to assign and con- 
vey both SXaaehold Premises.and fte t^'^V^^^ 
wav of mortgage, therein reciting that the leasenoia 
nremises were vited in them as tenants m common 
forTe reldne of the term. Astbnry, J., from whom 
thL a«W w^^^^ held that, in the absence of any proof 
hattfCs EmUy and Edith's interest or duty to keep 
the term alWe at the date when it had been assigned 
lo theZ tbere must be held to have been a merger 
L Sthe subsequent mortgage was -^e^^^t - to 
their intention at that previous date. The Court ot 
Appeal unanimously over-rule him on this last point, 
taking the view thus expressed by Lawrence, J. (p- 
350) • 


residue of the term wJuirh^ ^ *^^ ""*■*•* ^ ^hem for the 
a merger, and wTulHlve b^Xxr"^,™*" " ''''''' '»'»«' "^^ 
themselves Intended that , ""rJ.^l'^J^ "''*'"*' *' t^^^^ bad 
months before. In fact of cour/f th °v " ^^'^ ""^ ""'^ *««» 
«er: but this onl^ p?ace, the b,a™ °°*^*°* *'"'"* "«'■ 

tegal adviser. I thSrthe tru.^f ""^ '° '''* -boulders of their 
evidence is that the partleJ b?V^rT'''f 'f .^^ '^'"'^ '™°» «»e 
there should be no'Ser o/t^e leiS? *'"'"" ^'^ *°**°<' ^'''^t 

^^^o;: and Purchaser -Open Contract - Pur- 
tr«T/ ^r^^'f ^« ''Z ^^^^rable Defects. Open con- 
tracts for. the sale of land probably do not very of Si 
occur m these days of almost universal r^rtlo 
simple printed forms, bm it does not seem right o 

McGroty in this Current Commenr ,ry. The short 
point there decided by the Court of AppearisTha 
upon an mquiry as to title under an ordTary de 'ee 
chasXd' r''T"^^ ""' ^" ^P«° contrac7to pur 

contralt knew nf^'r^''''! ^^^° ^^ ^^*«^«*J i°t« *>>'' 
Tthemie Il,l 'r'*'°'' "^ ^'^^""^l^ d«fe«ts 
T nrS n ^ *5^ ^"''^^^ ^^'■^ o^ the «ame opinion 

waMp 4%"i"'''' ''•^" P"*^ *^^ -*t- ^ "hTs 

opJon 5' Sir* BdwarTpV^and otl?' *° *$'""'*-'=« ^'"^ ">« 
implied term of an open Lt^. ♦? f authorlUes that It Is an 
nlshed. But It behi* m im!H^ *^** * ^"^ ""« «**» *« 'or- 
evidence may be iSmltteJ tf !h **T.' "** °°* »" «!»'«« t«™. 
not to be reUed upT f"u eS. be Iho^Sf ! I^^i''"* *^™ ""^h* 
both parties there were cer^n infJmr *' *" "** knowledge of 
covenants, or a rlgM of iSJ or S T::/*"* " restrictive 
both parues to eXt «dT'w« ^^ !^L^ .^'j^K''''''''^ '" 

tbin.. that thet'J irLT]:- JtuT^ J^g" fl^'e.^^ ' "*'" 
• [1917] 1 Ch. 414. 








I t 


i _ 



' i 










Canadian Decisions. 

[vol. 37 

1, T 7™S A^rdSSg ""thTsobiect, apply 
t C.lar tI aLfon is' of importance for we 
have" constitutional provision ™* as tha^^>n te 
uTted States declaring treaties to be tbe supreme 
law of the land. Yet Cross, J., says (p. UD ■ 

Great Brtuln to «1T« to 5» •r'XBUolTol copyriBUt md rl«»' 

Such coBTontlon H to be tpeateo oy u.e 
(citing American authority). 

And after referring to the statutes, comes to the 
following conclusion:— 

„.j- i'icn-r.-:: T^:.r^tz rn^.rs 


As Carroll, J., points out (p 105), Canad^^as no 
accepted the Imperial Copyr^fJ^'^^^f^^lL 



.A. „o.t of our subscribe™ ^^1^1,^^::"^^^^^^^ 

S^erTlnf^U.- wm'therefore. be noticed. 
"R. J. Q. 26 K. B. 8T. 





Roads running alongside precipices—Responsibil- 
tty of mumcxpalUies to protect against accidents 
Dame Fafard v. La Cite de Quebec' r^e^y be noticed 
very shortly. The Court holds that m/niJpal o^r 
porations are not responsible for risks naturally in- 
herent to the fact that highways border upon preci- 
pices; and are not bound to erect solid walls capable 
of ^resisting an automobile swerving from the right 

Autonvohil^Responsihility of owner for driver. 

roitrf ?r'r''- ' ^' ?°. '^«« ^° *^^ Quebec Superior 
Court for April requiring mention here except per- 
haps Leheau v. CoUs,^^ which, like the last caTe may 
be briefly referred to for the benefit of that dangerous 

WW f t'tf ^r'^°° *^^* ^ °^«° ^ho allows his 
brother to habitually use his automobile, though not 
competent nor possessed of the necessar^ experience 

wUh ht^ ''r'^' '' responsible jointly'^and^quX' 
with him for damage resulting from a collision caused 
by his negligence as driver. We are not able to say 

li:h w^cTul^' '^ *'^ ^^^ ^° ^"^^^^^' *^-^^ - much' 

"B. J. Q. 26 K. B. 139. 

» (1917), R. J. Q. 51 S. C. 335. 

A. H. F. L. 

J % 

1 ' 






[vol. 37 




The Harvard. Law Review for April co«^«"«^ 
with the first part of an Article by Edwin R. Keedy, 
If th"er^y of Pennsylvania Law School upon 
t* perennial s/bject of /--^\^ ^^^^^^^^^^^ 

Sg crSal responsibility when the defence of 
CaX is raised, which has been approved by the 
Cunte of Criminal Law and Criminology. We can- 
not do moL than set out the section cnticxzed^ 

sec. 1. WKen mental mease a f ''««-?'» ^rtl'me of ie 
after be convicted of »y '^^-^X^''^J'l^''::n^i^ trZ\aeni^ 
act or omlBsion alleged «**°"* JJ*" f J^^he «* ^ »»»^« «^* 
SS::irstJj^ oHi"- .rlSoSX^ --. act or o.U.oa 
iTorder to constitute the crime charged. 

This is followed by a characteristically clever 
ArtM by Professor Harold Laski, of Harvard Law 
thool on the Early History of the Corporatwn m 
Itw and%he d'evelopment of eorporated-^^^^^^ 
counties, boroughs, townships, and ^^^;«^«' ^^^^^^ 
valuable references to the writings of Maitland 

Ilnivcrsitv of Texas. The writer has much to sa> 
aZt 8M 74 of the Commomvealth Act which pre- 
veZ rpeah from the High Court of Australia to 
ftejSl Committee on constitutional questions, 

in than. 

' ■","»*! 

U.i.ii„H i ii iig>ii 


unless the High Court shall certify that the question 
IS one which ought to be determined by His Majesty 
in Council; aiid shews that the High Court is de 
finite y committing itself to the principles and oon- 

^Mf!«''?i, n ''°'*^*""°"*^ ^^^ ^^«P*«^ >° «^e United 
states the Commonwealth Constitution being 'a dis- 
tinct effort to combine the salient features of English 
parliamentary government with some of the notable 

UnSsLL's?^^^^^ ^^^^^""^^"^ '' '''^''^^^' - *^« 
The Law Times (English) of March 10th, says — 

a^d knowledge Of human nature rtLre^to^TeteTentlem^" wUh 

:;irr,n^t':J.r^r' "* "^^ ^--^ eresSn.^jLrnr; 

We are glad to reproduce a paragraph in favour 
ot the grand jury system from the Law Times of 
March 1/th: — 

on t'h?"de"^o? ?o„?n! T"'' ^"'^*" ^'^^^ "'>'' '''°««» themselves 
T- I ! IS! non-interference with the grand Jury svEtem in 

ies8^to'be^trj'i"*t*° "^'^ "*^" Whether Sere 1 crtm,nal™u S 
»^H oL T"*^ °' "" °°*' " *« «»«*'• opinion that the county 
a^d city .gentlemen should be brought before the assize Se 

iu Ls^^fK • '•«=«*^%'" ^^J^""' ft-om th. learned Judge dLharfe 
homp« f S"* r """*" *° "** discharged, and return to tieir 
Jud«H Ini?*'.? "^ ?""*• " '" "^ °P«" «"«t that many of the 
judges enjoy "opening of the commission" and addresSL •■ Mr 
Foreman and gentlemen of the grand Jury." Twenty ^IJs ago] 

I 'if 

J ' J J 



[VOL. 37 

'''"Zl ,*1 Cd^usTe FluXn wittily remarked, "but the 
publUh these addresses they will very soon be stopped. 

Speaking of the recent Wheeldon trial in England 
arising out of a conspiracy to poison Mr. Lloyd 
George, the Law Journal (English) of March 17th 

says : — 

< Nothing at the Wheeldon trial, startling as was much of Uie 
evldeSTwa- more "tonlshlng than the suggestion of ^e "^"^ 

As a matter of fact— If, intteea, "^'"'";% .^ red-hot Iron test 
customs can be regarded a. a »»* J' «' J^J"* ^Wng U^ bare 
was allowed only to persons of "«^. J^J^J^Sr whl^ Emma, 
eeet over -JhotP^ughsha^B was ^^'^^^^^^Zi^t^^t she 

mother of =*]:;"* ^^^^^^^^MuilSS^ with Alwyn, Bishop of 
was Innocent of a too Intimate »'^'^'*1 q^^ monkish 

Winchester. Fixing her eye. on ^e™-^ ^Tfor^e Bishop. 
chronld.^e took nine step, for h„sj^^^^^ ^^^^^^ ^^^ 


her feet-according *« ^^.Xt^e l^^T^^oS oi^lch a'trlal 
red-hot iron. . . '^^'"^ old Sley was In 1679. when John 
by ordeal was suggested at tiie O^* f,"^^ rf having tiAen part In 
Oovan, a Jesuit priest, ^^°^'''''^'^^J^^%rMlege "We 
tiie Popish plot, claimed It "f"**fi*J"*^rth who presided, 
have no such law now," f^«^J^J^,'S ^ 2^'dSnc! In the 
with Scroggs, at the trl^. The ^unse^ ^r tn ^^ ^^^^^^^^^ 

:Srr w^Sd-bi S? n^Tpro^Sd revved at the Old 
Bailey In these days.' 

The claim by Govan in 1679 was certainly a 
strlge one, seeing that by the Lateran Conncil o 
1215 the clergy were forbidden to take any further 
part' in ordeal^ which had the effect to stopping the 
ordeal! excepting trial by battle, which was unaccom- 
panied by ecclesiastical ceremonies. 


The lUinois Law Review for April beirins with a 
very long paper by William V. Rowe entTtfed Lei! 
CUmcs and Better trained lawyers -ANec^sitJ 
The Idea of a legal clinic is entirely new ^ urbut 
who ^T'^^^""*'^ "^^^^««^« his w'^rds to tho^e "o 
^venrJ ? r"'^" ''^' ''-^'''^-^ which have 

for we read- *^'''' ""^^"^ «^^«t ^"h us. 

•The general Introduction, since l8«o «f ♦ 1 u 
graphers. typewriters. dlctaUng m! coi^„; h *«'*P*>»°«». "teno- 
ments In prlnUng. to conWSortifh ^„ * *v ''*"• *"'* *"P'"°^«- 
alreaay noted, has maJT rtSenSi ^^n^i"""" "''"'«** '° »"»«"" 
ally undesirable In mosj o the Itlvl Uw T"^'"^'' »»"* »«»"• 
tag they are considered to be a nni«i!! Z. "?''*"• P'**"'^ »»«**• 
able to participate Jn ie resDonZ ^« '""yfl"a"fled lawyer, 
meet clients, il aloi^ n:je7Z'ZTC "" '"'"'"" ""' ^» 
And it appears — 

been TZ" ft "Vi^ al'tpenhT " ^""?'"^ '^'•^^^-- ^^ ^« 
adopted. Officially or^oiclXi ?'•'•" """ '"*""'' *'**° 
University Of MlLesotrNorSw4t^*HaZ.!,TT '^^ '''^ ">« 
George Washington. anS perV^ps eis^^hS^ **' ""*'"• ^*'"*^' 

We wish, in our ignorance, Mr. Rowe had in « 
clear, simple way, explained exactly whaUhe s;hi: 
•V'^M '^?°''' ^'' ^^^ th«"«h we have devoted coT 
it can h' *^"h' *? '^^ ^'*^«^^' -« — t eoncdve how 
luL J f *' T^- ^"* *^ P"* «"- readers ol 
SeTextraL^^^'^'' ^' ^" '^^^*« «P- ^- two 

Chicly* ^?,ni.e'?',eXrt'rel" is'l,*™^ '"^ ^^ ^"'^' '» 
dlBclpline in the condUTpSsTdnl? iSSrA ^'f '''"'^ «»'* 
what may be called the profMaioTni -t "'!""»* development of 
/«<«. in the only possibrXXt itT*'' "^'"^ "»'» ~^'' 
student m a proper law nfflJI\!^f* *' *° "*''• "^ »'««»« the 

reputable pr«,UtionSS of hii^S^^ter ihoT*"' ^"'^ '*«' 
Uce. are applying the law in tto c^e La ll°vi„Vr*"" '"^ 

7- - Li:; oTictr?^- rjee? }:^:r^j^^^ 

And again — 


;i f 


\ :? 


..euc tie. tne ^2i,-i^Sjrt.e^SJno « ST"^*: 
part of lU *"•'"•«"* 'S^ihrcUnlc «d a. a nud.«. tor oth.r 
devoted to l^e PJJJ^« j'^Vtoie cllnle'. offlc*.' 
builnesa which will he aurw:-™ . - j ^^^A\ 

tice of medicine or surgery, »uu *' mi,„i;n 

Kext conies a long A/t^te'^Mr^^^^^^^^^^^^ 

of the ^l^^X^'lui^FllTcZl^^ of a Trust 
greater length, entitled ^ orma*.\^^^y^ jg that- 
Inter vivos, the ca^sa co^J^^l^l"^^^^ ^^tea. the .ut. 
. in the varloua <»»»«°,7i*'S^.Si*t or a. ^l developed a. 
of the tnwt law la not nearly aa clean cui 
the BngUflh rulea.' . 

That e^eUent feature of *! jf^t^Tpril u"e 

..La„ from L^, fS^'ZZ^r^^^^o'i^ HiU 
of gleanrngs, »'*J^^,.'r',|^% became an >A- 

doned the profession for that of letters. 

Wo v,..vP received- International Law Notes, a 

February and March, ^^^jffJ'XZ L^ by 
tides on Marnage tn P^^'^f^'^ ^ ^ Wilkinson. 
our able London correspondent Mr. w. rj. 

The Indian La. Q-^*-%/^f f ^^ Talapatt "i 

Aiyar B A., B-L' Vaki^, n «^ ^^^ ^ ^^^^^^ 

The^tstory of the f^f^^ ^ ^^^ i^w a curious 
he shows that there is in ^ariy i^ K obtaining 

and striking resemblance to the law as now 
in India as regards restrictions on the press. 

The Michigan Law Review for April commenc^;; 

with a V^Ver^-'^^-^T.'^ZTt: 'beorf of 
M«Murdy, Chicago, which treats of tbe the J^^^^. 

criminal punishment, quoting /j^^ r^t^.^ great 
writers on the subject, and anticipatmg that the g 


"'} ' "'m. 


deterrent of chronic offenders may prove to be ameli- 
oration of treatment and mild punishments. He 
tells a story, new to us, of Edward Livingston 
he author of tl^ Louisiana Code of Civil Procedure,' 

pJl.fp'^^''"^r^^^; ^^'^ ^'""'y ^«i»^' «°d also of a 
Penal Code, which, however, failed of adoption :- 

He was obliged to prepare his draft of the Ppnai rnHo ,„ 
French as well as English, and there Is In Ilt!rr,t L«^ 

TrjrtZ TTT"" '''' p-"iV^i^i^e7nlnroMl?; 

known fate of Carlyle's first manuscript "r-^ke French Re7o1« 

All readers of Froude's Life of Carlyle will re- 
member how a careless housemaid lit the fire with the 
farst manuscript of his greatest work. 

This^ is followed by an Article by LeRoy G Pil- ' 
Img, of Providence, Rhode Island, entitled-'^w 
Interpretation of the Eleventh Amendment,' which 
upholds the doctrine of State sovereignty and State 
immunity from suit, by providing- ' 

.tJ.T'f ^""^'"'t' ^''''^'' °' *^^ United States shall not be con- 
strued to extend to any srit 'n law nr „,.w 

prosecuted a.alnst oneTtho UuUed Lte« bv Chz^^T"^"'^''' 
State, or by citizens or subjects oSlyfir^.^ sS "' *°°*'''" 

There' is also an Article on ReasonahJc Rates, bv 
Henry Hull of Washington, D.C. 

The Law Notes (Northport, N.V.), has the follow 

foodTo""^;!:;:-""'' ^"'^'"^^^ ^^"^''^ «»^»^ 

penalty for murder. Such a substitution loJSsigifof 1 mal^ 

Sf^ nf w* .-^^ '*^^* °^ punishment and exclude absolutely 
J iJJLSn! ^H ' ','' "a^onable probability that he will become 
•n confinement after that time is too long. The crime which he 
VOL, xxxvn. ox.*.~ 26 

;: ;i 




' M 


< s 

\ : i 


' w 


398 XH. CAKADIiO. I^W TIM«. l^^^^ ^^ 

bM committed U no untOUn. In^ to Jb. ^-J^J^f^o^ 

depravity tor «••»•' J*" ^ttJ^^ fchnlcal dfrw ther. «• 
perpetrator, ol >^"»»i*~^JSrtng « Uluetraaon from • dtatto- 
Seat moral ««*""3ie ^^mider-r. wbom *cttoo b.. mjjj 
Kulflhed penologlet, taKe »^" ™ _ jo-* The former, « reieMea 

after twenty year, to ''2"^iJ°°Sie latter. Ws mad P*»»«\f^ 
Surder at the flrat o^P^f^^' ^ct safety to -oel^ty, *»'•.?!!; 
carmen burned out, could ^"^.^™" rsa^ death penalty and the 
2f^t large at once. ^^^^^f/ojC^ure. there 1. no logical 
unlTerwl indeterminate wntence 
.topping place/ A-Viplea 

upon The ^«<«*;i^/ *1 ^Stt of Harvard Law 
2V«.t, Austin Wakeman Scott ot ^^^^ 

School; TheArrangem^tof^eLa ^^^^.^^.^^ ,^ 
P. Perry of New York City , an ^^ 

C««m of action Ar^s^ng^ndej '^J^^,^\c.; 
Commerce, by Henry ^^ j J^ J™ ^^^^^ for 

The Umversity of P^^S^J^^or Ini«.trial 
April has Articles «^ ^^Xmwi of the New York 
jHseases, by P. Tecnmseh Sheman oi ^^^^^ 

Bar; Control ^/oT HaJ^a d La^sl^^ Ind TJ. 
Wakeman Scott, o^^^t^^*'" , meisen of the Phila- 
Dant.. Jf^-^^.^;'^'^^^^ April has 

delphia Bar; ^^^ /^^ J^°^Z^ Constitutional Umt- 
Articles on Soc^^ ^8^01^ of Princeton TJni- 
tations, by Edward S'.^^'Ji^^^.i^^e .^ ^^^ c,„. 
versity; Capoctiy owd ^''^'1^7^Xier Temple, Lon- 

don; Comment on Failure of^ Western Reserve 
Walter T, Dnnmore Law S ^001^ ^^^ 

^Tr'i^'s T'lnsS^ K^d Judge Advc^ate 
^; t J *, Articles on ^j-^^^lW ^^^^^^^ 

Actio ^^^^^<!^i%z'7:^^^^^^ 

ington, p.C.; ,.^''**^^^ ^/%ee Mallonee, of Uni- 
Vncofitution^ty,^y^^^^^ and Future Mental 

versity of ^^«°*^^f^' JJ*.. D^ges, by James M. 
Suffering as an element of u(rrnuyv , j 

Kerr of Los Angeles, Cal. 

E."'^ i ^'' ' ' ii« .»i 8a^iJjh,M 





ReicUHon of Contractt: A Treatise on the PW«,^«i.. - . 


Bar. London: /P.^." .;■ J^r^'iT a^^^^'" ^^' ^^^^ 

We have liere a contribution from one of the self- 

t^t'S ^T^'T'- *° *^^ '°°« '^" «^ English legal 
N Z H ». ^r ^'*"*^?' ^•^•' '««^^^« i° Wellington, 
cases rdpffnu/'T"^- V' ^""^^ ^^°°^ th« *^«^^ided 
^ de ^hf S^ ? "S"^. ««t«^««tory set of principles to 

H^nld ?T f i*^''.''^" "P°" **»« topics above men- 
tioned. He deals with the authorities in, as it seems 
to us, a very thorough and lucid manner and covers 
rescission proper by act of both parties ; dischargrby 
breach; rescission by new agreement; resoluSve con 
di ion.; repudiation; avoidance for mi;represenUt[on . 
mistake; dissolution by operation of law; restitutLn 

r^pl- ^}V^T '°^PO'ta"^ cases referred to on the 
question of discharge by breach. 

Lamer^ Olul. in tnJ^^of'NTLrT*^ "^ '''^'^'' ^* «• 

undtr wJIwi!''^*'"f «*''°'''^* 0^ *h^ Circumstances 
kto Lve^l f.^'^'^w"*^"* Agreement was entered 
and n*Tf •^' °^^^°t^°«°ce by the United States 
Grif T V *^S respectively of armed vessels on the 
Great Lakes But the effect of the opening words 

Ti^kL W 'h '* tf " '^J '':'^^'^' which haTnorbeen 
vea«°' ?« L ' ^f ^^^^^^""5^ ^«P* fo^ a hundred 
Ss:l *"' """"'^ ^^ *^^ concluding para- 


f -if 

1-- ■ '^ 




.« >k. vBrv natural deelre of the bWp- 
.ource of trouble, due ^° /'}\;*7 .J^^p ,„ the lake .bore,. 
buUdlng establishment.. *hlcb have grown P N,,.y. I. u 

10 share In the c"""' h Jhlut IncurHng the «une danger. 
We have also received :— 

a/ed Pre»», Limited: 1917. 

r*^ /flhour Oaxette ittued bv The I>«- 

A'iMJ7'« Printer. 

The University MaaMi»e: 

Montreal: . February and April, 

ion. . 

Although the contents of t^-^-jre^U ^^^ 
excellent -agazine are none of he^ — ^e ^^^ 

law, we cannot refrain from spe"""^ ^ . f ^^^ 
ex. dlence of the brief comments upon Topics onn 
n^« witVi which each commencec ; and ot trie v» « 
Kv' by Professor M.urice Hutton, .n the Apnl 






The Canada Gazette for MniHi liUi, contains ihe 
message from th. Secrotary of State for the clrlu^ 
to the Oovernor-Oeneral. the " fine spirit " of vhich 
our government has duly acknowledged fl t- 
' H. M.'s Government have decided <ha> .n r,. . , 

r^rr-Jl;^^,s.•'£^s?^ '7■'•'- 
a\mJ^Z'T"' "^r' ^^^''^rnment's reply, .which is 
also given, it is said — 

knowl^r thm "*"'* '^'^"l'' '"""'^ '^' ^'"'- "' Canada, and the 
of mumate famljy relationship between ufl.' ^"''^''"S bond 

; The British Columbia Gazette of April 26th con- 
tains a provincial Order-in-Council that— 


^e «,d Act. made or takeu wlZut hrSS,l'„*J;Ca"ar'Lv 

Lr"i"1?^Z ' °' f'^' ''?°'*'"' Expeditionary Forceringaged o? 

Of ti prSlnt^wt' Sd'ff""^" !"/°'"''* ''"''°« «>« continuance 
uie present war, and for a period of six months thereafter. 

The Supplement to The Manitoba Gazette of April 
7th, contains the provincial statutes of last session. 
Ihey comprise The Agricultural Societies Act, R S 
^^« •;' ""•/'^^"'^ repealed; an Act respecting the 
tapactty of Companies, which, stimulated bj- the 

• ^ 


i 1 


rr^^k " iudKmeBt of the Privy Council. 
" Bonanza Creek, juagiuc „^ft--tion— 
enacts that every provincial corporation 

Znt creaUng It. h»Te ""^^ *!!^'t> «eJdL lU powers beyoiid 
tion. the capacity of a ^"f^^S^^i^^Vto wMch the law. to 
Sie boundaries of the P"^^f ^^ ^^ exercised, permit, and 
force, where sucii P^ul i^we^and rights. «id rtiall. «nle« 
to accept extm-proTincial P®^"" ^ or Instrument creating it, 
otherwise ^P'^tlL*?"*^! haTf^^m 'ts «eation. the general 
haye and be deemed toJ*Y^^'„%^ attaches to corporations 

There is also an Act U> <^2%Z\'Xt:^- 

of Estates Act/' ^^^^^^.^^t^M time 

to make vestmg orders of land ^^^^^^ ^^^ ^^ 

after the expiration of one year ir 

letters probate or '^^^^^^^^X' h^ ^^^^^^ on r.- 
be, if the personal representative nae ^ 

lands; or in the case oi rTT.., . j There is also 

^",' 1' 'If r/X o^ ^^^^^^^^ ^^^"^:;' 
a lengthy ^c« to fj^J^^lJT^ , ^^^n /am woH- 

devdopfnent ^y f^'^'i'^y^Z,^ Also a Fire Pre- 
gages ^^^^^^^^ Vm%V c tT and^l amendments 
mention ^ct, «;^S^^^i'^'^^^^^ are made to 

thereto being ^^P^r®**.^, ^Heveral other statntes. 
the Game Protection Act, ^%^^^f^^\ ^^ admin- 
There is also an ^ter^^^^ J^**] 1 ti^ey-General, 
istered by t^e Depa.tmen^^^^^^^ l^p^Uc^^ommoda- 
which estabhshes a ^^^^^^l^ ^^g jurisdiction inter 
tion " with an advisory council, ana juris 

. („ to give municipal ST^-^t^SS."* ^^^"5^-1^1 
he may think fit "8««"«^,"^**" psrtamm. 
of suitable pubUc •««»»»;»*»"^' ,^ ^4 regulation. . • • 

(b) to promulgate and e.ttWl^ '^^^tHnd inspection 
„^,„g til. conduct, r^^*^ ^^^^^^<^^' 
of all pubUc hotels and otiie? pia«a 01 v 




Sergeant T P. Elder, formerly practising as a 
barrister m Nanaimo, B.C., has been awarded the 
mmtary medal. 

We are glad to read in connection with the ap- 
pointment as King's Counsel of Mr. J. P. Byrne of 
Bathurst, N.B that the call to the inner bar is more 
coveted than heretofore in New Brunswick, as poli- 
tics now play no part in its donation, but members of 
the profession secure the honour on the recommenda- 
tion of the Chief Justice of New Brunswick and of 
the Chief Justice of the King's Bench Division. 

.r^^Lf^ ?• J?T^«y'. °f Vancouver, B.C., has been 
appointed district registrar of titles at New West- 

Lieutenant B. W. Russell, son of Mr. Justice Rus- 
sell, who took part in the battles of Ypres and the 
»omme, and whose wounds incapacitate him for fur- 
ther military duty, has resumed the practice of his 
profession m Halifax as a member of the firm of 
Murray and MacKinnon. 

Jesse Bradford, barrister. Sturgeon Falls, Out., 
has been appomted Police Magistrate of the town. 

George Edmonds, barrister, Midland, Ont., !has 
enlisted for overseas service. 

of W •**'v*'' »5"^J.^o°»en to the study and practice 
of law m Nova Scotia passed its third reading in the 

vow'" Th K-tr^y i^'''^*^^ ^**^^"* « dissenting 
,H ?•• Il^'^l extending the franchise to women is 
still m the hands of the committee and its further ad- 
vancement 18 said to be doubtful. 

Colin Fraser, who formerly practised law in To- 

ZdVh.LT^^ ""^ ^^^ ^™ °^ ®«^^«o°' O'Brien 
and Gibson, has been appointed head cf the Farm 

Loans Department of the Saskatchewan Government 






T .• T>..^A Karriater of Montreal, nas beeo 
.pp^:« fh^trrr Dominion G«i. Con^U- 

'''' Pte T E Smith, formerly a law student in the 
of Wimiipeg, has been wonnded m the right arm. ^ 
We regret to see the following deaths reporter 
since our last issue':— 

His Honour Judge Philip Holt, .T.mior County 
Court Judge, Huron County, on Apnl 18th last 
Goderlch. ' »r u 

Joseph Ulric Emard, K.C., of Montreal, on March 
30th last, Ht Montreal. 

„ QnJHpr DC.L., barrister, 
Fletcher Cameron bnider, u.^.u, 

Toronto, on April 2nd last, at Toronto. 

Tx ^ r nf T.evis Que., on March 

Charles Darveau, K.O., ot L.evis, sju« , 

23rd last, at Levis, Que. . ,. , . , 

T v« W Brown barrister, late deputy district 
reg'tr »aXuty reg..tra; general of Manitoba 
Land Titles, on April 10th last, at Winnipeg. 

Thomas Goodair, member of the City of -Winnipeg 
law deplrtaent, on' April 15th last, at Wmn.peg. 
. Those that leave their valiant i,«es « Tram,". 
Dying like men.' 
Maior John Hales Sweet, of the Canadian High- 
landers son of Archdeacon Sweety ^™-'^^;i 
and who formerly practised law m Vancouver, 
in action on April 9th last. 

rs \. • w F ftnild formerly practising law m 
Captain W.t. ^"J^^'., '' ., \^l. from wound? 

reiXTontril SthX:?ir>;>« - - - 
tion in the attack on Vimy iviage- - 

Canada Xaw journal. 


NOVEMBER I, 1900. 

NO. 21. 

1 he vacanc)- in the Ontario Bench is still unfilled, to the -neon 
ven,enceof l.t.gants and thereby throwing an undue pre si e of 
work on the other judges. It is high ti.e that an appoin^T tU 
^ade. We have been told that it may be expected shorth a the 
Do,n„.on elections will .soon be ox er. which remark to some wol 
seem to convey- more than meets the ear. From a polit al IZd 
po.n there may be a good reason for the dela^- ; but hat L no t 
satisfactory- from other points of ^•iew " 

Son^e of our contemporaries amuse themsel^ cs with foreshadow 
mg apponuments of this or that, based on conjecTu;' ' J 
h.s rehgious proclivities. We are sorr.v to .see such idias prevatnt 
■nasmuch as they tend to create the impression that 'tho4 in 
authontv- are justified in making appointments on .such g- nd 
mstead of those of personal and professional for the office 
To appomt a man a judge because he happens to belongTo a 
par .cular creed, apart from the question of his pergonal and 
pro ess-onal fitness for the office, is an of power, fpr^^ ,t on 
of the office, and a gross injustice to the community. 

A valued correspondent from Hamilton, in a letter which we 
publish m this number (post p. 630), calls attentio, ^ ve v 
•mportant matter, and one which we have alread^■ refer ed ol 
t esecoumn.s. He very properly sec. 606, l-T; 
of the Municipal Act, as a most iniquitous provision. How ft' 

!m 77 V" '''''''' '"""^^ '^ ' '"^'■-'- l'^'--'d at once b^ 
amended. We are glad to knou that the attention "the 
Municipal Committee was called to this matter last session and it 
was very nearlv struck out on that occasion, hut comin- ' up h. 
cose, there was not time to give it sufficient conside;:;ion. W 
rust hat some member will make a point of seein. to this n. v^ 
^e..un. thougn vcy pnssibiv after vNhat was said about it in com' 
mittee. the Government may have a clause drafted to ma ne^s' 
san-^.nendments. possibly ,n the direction suggested C^. 


■ i' 



Canada Law Journal. 

We have much pleasure in publishing in another place .. letter 
from the Police Magistrate of the city of Toronto in answer to our 
remarks on page 517 ante. The personal -^'^^^ ;f ''''''' "^ ^ 
the discussion are of no special interest. If we have, as s c a e 
told, made some mistakes in unimportant matters we are glad to 
be corrected. Many of our readers know the facts and can be 
the judges. Our object was to repudiate as most unta.r and 
injurious wholesale charges of wrongdoing the profes- 
sion We now understand, from the letter, that the .strictures we 
referred to were not meant to convey the meaning that we with 
other members of the profession, tooK from them. 

Preliminaries having been thus disposed of ent.rely to h,s satis- 
faction the gallant Colonel proceeds to draw a v.v.d picture, ( 
poetic of the long drawn out agonies of a law suit irorn 
the time when the reckless, not to say wicked, lawyer sets the 
machinery of the Courts in motion until the time when the 
paupered client dies of a broken heart. He also very propedy 
gives his views as to the best way of reforming the abuses in the 
Administration of justice which lead to such unhapp>- resuks 
pnd speaks of two possibilities in that connection. One is. tha 
th. State should look after all litigation, hiring lawyers at 
fixed salaries to assist the judges. As an alternativ^ proposition. 
.e throws out a hint as to the propriety of deciding disputes 
by the tossing of a copper. The first suggestion ^^ ^f^^^ 
and reads like a chap-r intended for a revised edition of Bellamx s 
" I ooking backward." The idea, however, of organizing a " Copper- 
tossing Bureau " is quite novel, and worthy of consideration as being 
both simple and economical. It would, moreover appeal to the 
.ambling spirit of the age. We should be glad if our correspon- 
dent would elaborate this idea a little. Parliament will soon meet, 
and tlie matter might be introduced. It would at least produce a 
dLussion quite as intere.sting and useful as many of those which 
now occup)' the time of our law-makers. 

The Albany Law Journal notes a recent decision of the .Supremo 
Court of Minnesota in Cunntfigham v. Cnnntn^luwi as t.; the 
meaning of the words - in the presence of the testator m connec- 
■ !n witl. the execution of a will. It appears after the paper h.ui 
been si-^ned it was taken into an adjoining room where the w,tnesse> 
^ffi.;;ecUreir signatures at a table about ten feet from the testator 

The Home-Coming. 


The door was open, and he could have seen the t.hl.. u x u 
stepped forward two or three feet, but he d.V i tt ' o o Th 
\vill was immediatelv taken back to the t./ . ^ 

bar .he .,«„,„, ,„,, p,,,, „,„., .he L, d of hf ™:!;' 

Oh ! may that day whitest stone be marked, 
U hen at the.r country's call her sons came forth 
And at her feet their lives and fortunes laid, 
Her honor to defend; that debt to pay 
Which every faithful man to country owes. 
Alas ! by some that debt is fully paid 
Who their devotion, with their life-blood, sealed 
Oh ! gallant hearts, oh : b-ave and faithful sons ' 
Your death is not in vain l)ut shall inspire, 
In ages yet to come, the martial fire, 
And deeds of valour oft again incite. 
And ye who from the toil and stress of war 
Have safe returned, we welcome to yourhome^ 
And to our hearts we take you with delight. 

ft- ft ^1 


Canada Laiv Journal. 


The clasticitv of the common law to adapt itself to the altered 
circumstances of commercial expansion finds striking illustration m 
cases of what are technically known as contracts in restraint of trade. 
I n the reiijn of Henrv- V., in the early part of the fifteenth century 
it will be seen bv reference t<. the Year Books, it was even then dd 
and settled law. founded upon public policy for the ^mod of the 
realm that contracts which had the effect of limiting the skill or 
handicraft of the industrial classes, or which tended to favour 
monopolies and exclusive privileges, were void. The reason of 
the rule -a as. such contracts were inimical to the public weal, in 
consequence of depriving the public of the services of such as were 
skilled in employments beneficial to the state. The tendency of 
such contracts, likewise, was to prevent competition and enhance 
prices A case occurred in the 2nd Henry V.. found in the Year 
Book of that date, in which damages were sought for breach ot a 
bond with a condition that a man should not exercise his craft of 
a dver for the period of six months, w=' rn a certain town. Mr. 
lustice Hall, who tried the case, angered ai mch a violation of the 
law with an oath announced. "If the -..iaintiff .were present in 
court to prison he should go until he made fine to the long, 
because he had dared to restrain the liberty of the subject." wo 
principles from the first seemed to antagonize each other. Jne 
holdin- the state should not be deprived of the talent, skill and 
labour of anv of its members by any contract he might enter into 
The other that courts should not lightly interfere with freedom of 
contract which when freelv entered into should, as far as possible, 
be held sacred. It has justly been said, freedom of trade and 
inviolabilitN' of contract are alike favourites of public policy. 
There has long been a constant effort to harm<mize those conflict- 
in- principles. The hard and fast rule of earlier cases of contract 
in'restraint of trade has gradually relaxed with the ever changing 
phases of commercial intercourse, and seeks, while protecting the 
rights ..f the contracting parties, to conform to modern vu-vs and 

ideas of public policy. . . , , ui- u ^ 

In 1621 an exception was grafted upon this old established 
maxim uf the com-iion law. The defendant in Broad v. Jollrfe. 
Crokc. 17 Jac. p. 596, was a mercer, who kept shop at Newport. 
Isic -t" \V.4ht. In consideration plaintiff would buy all the wares 

Cotitracis in Restraint of Trndc. 

in his shop, he a^rewl he 
Xewport. Plaintiff 


would not an\- I 

^'n^rer kec[) a shop 

valuable c<.n.ic,e.a,i„„ ':"i;h ' ^ ,;{.;;'^«"'™'- '"« - "1-" a 
in a particular place. """ ""'"« '"- "-ade 

wnn:,7;.:are'wSs'r';sf ,::;«■" it' - ''■-"'"■ ■ 

tinctiun between limited in I ""*^''""^ ""-^ P^niiple ..f .lis- 
further ,ue»ti„„; J^i^i: < „, r^' /rbt'.'' r "" '^""" '"' 
=he courts, that it m...,er«i „..t t. hXr ,,« ! l!,'' "'"""^•^^>- '" 
not under seal. In this ras,. ,!,„ , " , "<^ ■ Sjreerncnt ivas .,r iias 

bo^ unde. the ^ zx^t:^^::^:^ x^ 

.n the of St. Andrews, Molborn. for he term f « ' 
I he judgment of the court was the xaZx^ ^^^'^ "<^Jive years, 
-entfor breach of the bond. n an evh tiv'"' " '"" ^■"'«- 
all the cases uere carefi.lK. ' '.-^''^"''^"^ J"''^^'"^'"t. >n which 

Justice. Lord A^l^^,' d J^l, r',, ^""^"^^^^'- ^^^ '""^^ 
nothin, more appeared, wire b d h j ^^^J^^^^^^^^^ ^-'e. .f 

particular in res,x>ct to the time o p 1 -. "ffi "'" """ .""'^ 
t.on was jriven to the party restrained sn;^ " '"' cons.dera- 

valid in law. From this time W ^' T '"""""'' "'^'^ -"^'^f ^"^ 
courts with great urn" o ^ yhek hl^' '""" '""' ''^ '^^"^"••>- ^^e 
of trade Je void ; whTle'tho e n 0";^'^'^ '" •■'"""' ''''^^^ 
valid, provided thej^ were s ^ported Tt T^ ''''''^"' '''^'^ 

Chief Justice Best in ^I^ J^L '"^"*^"' consideration, 

ju.-'in.c nest, m nomer\.Asiforiii\iK->z\ . u- 1 

3-'2. thus clearly defines the old rule in,l hlV .T ," '*'"*■'''»"'■ I'- 

"The la>v will not permit a„,vT , • " '"'''""' '^"'-■ption : 

.Ke public -veifaL' r r rir: r:" T"''; '""" ""'-« »"" 

Any deed, therefore bv Jb^.h ^T """ '"' "'"'"''I <!"■ 

employ his talents, hi; i''ri*^„;\r:.:;kTf ''"^'^ -• '" 

H« it may ofte^tT^p r::„;,r irrL^n ca:ei;''rr "" ^'-™"^- 

of It) that individual inter,. -^ • '^""'- ■'-t-'i'ice 

cn.„eme„ts not to'car r-nrar'orT;:; TT^T ■ ^'^ 

r*-".' (liar pia«jc proiX'i ^, • 1 ' ' ^ 

.here must he some ions,,eration. oth^r!;;'::!::::'':; 'I'v"''"; 
OiJpressne What amounts to ,„ ,,|e„„„V " " ""P"'"'^ '"d 
decided by the courts of justice ' ""'"<l"«'"" i> •" be 

Just here it may no, ,. ,„ indicate the meani,,, „, ,hese 


^,. Canada Law Journa/. 

014- .^—— ' 

1 c I h,- the iud.'cis, Accordini! to lioivcn, l-J: — 
terms as .Icfiiic.l ''>,"" '""f,, ,„,,, „,v be dcfin«l as those 
..Contracts™ seneral restraint "' ";*- '"»\,^.^,i., „f his trade 

">■ ''''' : '7;':,rr"^ rei^r;:.! >.e„He,d 
-r'-n^r^irttSr:; ;i:tone-r:.i t.ere i 

FarKei . — -^ jjtin.ia> ^1^^,, r^r f>t the mode or 

some limitation in respect of person, place or ot 

common law rule, for in this .--'< >- ^^ ^ '/kLVs Bench. 
Exchequer Chamber,, on error '"^\'X vTJ r^'^t<i"' -"« 
in the case of //.V.te* v. C«ter. 6 X 8. K ^ «;■ *»;^^,i„„ „,,, 
would no. enter into the question whe.he ^^'J^^^^ ^, ,„ 
equal in value to the restraint at-reerl to b> *e defeiulan P 

this time courts had be.n astute in -^l""^ " ;;^^\\3, if , 
the consideration, holding .he "-^^Jy '^I This ea». ha, 
sufRcient consideration had not been """l''^' „ 

justly been called a l»"J™ark m the 1 aw. The Ibllo ^ ^ 

from the considered judgment of T^'l^'l. C- .. »^" j^ „.,„ 

valuable epitome of ^-- ^P;;-^^;; ™ J,*-; rconsideration, 
„„„hy of careful peni ah J^-^^y ^.^ > „,,,,h„ ,he con- 
more is intended, and that tne c y ^^ 

siderafon is equal in value ^".".^ IceTh -self, we^eel 

loses by the -^^-'^^^'f " ttdoctdne A duty would thereby 
ourselves bound to differ from that ^o^^rme^ A du^^^ ^^^ ^^ 

beimp..sed upon the court n. every P- '-ar -e^ ^^ .^ 

means whatever to execute. . • ^ I '- e" - • ^ 

fh.t there actualh' is a consideration for the oar^diu , 
to us, that there actuaii) ......iteration and of some value. 

.hat such consideration is a 1^.^' -"^^^^J"'^, . ,f consideration 
This case, in addition to ^^at adequa > ^^^^ 

:-:: St' ciZt-:; ;= ::t^rrot be .id, mere. 
°" t.rric';..T:ridi:i:^or,r: time had b^n ,et^n« . 

.he direction of the u.mct 90^^:;^^^^^ i^:^ 

While many iudB-f^^^Vt im 'did no, fail to put up a 
hasten slowly, and fr..m time to time well-known 

cautionary signal, and in a "-""6 "Lt^blie policy is a very 
dictum of Mr Justice Burrough:- That puDlic p . 

Contracts in Restraint of Trade. 615 

unruly horse, and when once you ^'et astride it you never know 
where it w,ll carry you. It may lead you from the sound law " • 
Kichnruson \. Metlish, 2 Bin^. 229. 

From 1 7 n. the time of the decision of Miu/wi \ Keynotes 
d<.wn to ,S40. it was uniformly held, that contracts in restraint u\ 
trade generally were void; while those limited as to pla-v or 
persons were re^jarded as valid and dulj- enforced. In ..S.q Ba- a 

n'ls!";V'" fr ^^"'■' °^ ^'^'"'^''■^ '^^"''^^•"' - ^''«-- 3 Beavan. 
p. 3H3. the old rule was subjected to further exceptions. In this case. 

Lord Lan^rdale Master of the Rolls, entirely ignored the rule as to 
the necessity or a limit of space and held an agreement of a 
solictor, for valuable consideration, not to practice as a solicitor in 
any part of Great Britain for twentj- jears valid, and granted an 
interlocutory mjunction to restrain a breach of the agreement 
Accordmg to the definition already given such a re.straint would 
be general. Lord Langdale held the question turned upon the 
fact whether the restraint intended to be imposed on the defendant 
was reasonable. This judgment, however, was subjected to criticism 
by Lord Justice Bowen in T/u Moxi,n Xordenfeit case hereafter 
referred to. His Lordship thus referred to it :-" The covenant was 
not a c.v cnant in partial but in general restraint of trade ■ and the 
reMra.m <.. trade being a general one. the court had nothing to do 
with the reasonableness of the transaction " 

Notwithstanding this decision of Lord Langdale. some judges 
still held tenaciously to a hard and fast rule as to the necessitv of 
a hniit of space for the validity of the contract. While other; as 
firmly contended, that in every such case, the crucial test was 

Z r u"'"''''"' """P"'^^ "■^'^ ^""'^^^ than was reasonabh- 
required for the protection of the covenantee or contractee In 
other u^rds. that the validity or invalidit)- of the contract turned 
upon the reasonableness of the restraint and its sufficiency to 
protect the rights of the contractee. 

J^^;-- Cloth Co. s- Lorsont (,869) 9 Kquit>-. p. 345. is the lead- 
ing' authority on restraint as to a limit of space in the case of a .sale 
of a trade secret. The facts briefly summarized were as follows : 
Defenda,n sold to plaintiffs certain parent rights and .secret 
processes for the manufacture of leather cloth, and in consideration 
of said purchase covenanted that he would not carrx- on in anv 
part of Lurope an>- manufactorj- having for its object the sale o'f 
products which were the subjects of such patent rights, and would 




Canada Lat^ Jonrnal. 

„„, communicate the pruccsse, ..f such -""'f-"":;;,,;^'.';^ 
defendant having violated his agreement a b,l. was «' ' -.t- ' -^^'^ 
for an iniunction. N,.nvithstandini; there was no limit, ci ncr 
for an mjuncii n. k„„„„ heiiv eiluivalcnt to an unlimited 

tiincor space, (the limit of Kurc)l)c D<.in„ equ. .„„,,,., ,l,.,n 

covenant) it was held the restriction iin|K,sed was ""< «"-■" •"" 
~as "ecessary for the protection of the covenantees, and the contract 

"■%'::*:: ^^^^ ^^'^ -- ..Uowed an., approved h, M . 

for which he was so justly celebrated, came lu ini. 
he only test by which to determine the validity ..r .nvahd.ty of a 
cove" ntn restraint of trade ,iven for valuable cons.deratu.n was 
: reasonableness for the protection of the trade or bus.nes.o^th^^ 
covenantee. This accords with the y.ew of ^'^^ ^^^^^^^ ^ 
Leather Cloth Co. v. Lorsont. and is. in my opni.on, the doctrine o 
t::;:^:i^odern authorities have been ^^^:-XL 
The following extract from the judgment of Mr. J^^^tcc ry 
case referred to, will indicate its scoj^ and purport .- Hut then U 

England and Wales, n.ust be void. Nou. m the fir.t pK ,t. let me 
their very nature are extensive and widely diffused. 1 '^^'"^ 

"flraZlhilst it would prohibit complete protects, o .^ ^ - 
class, and an injury which ought -' '^ ^;,^'7,.t:: ^"Vonld 

X was -reaso„aHle,the rule wotildo ate «,^^^^^ 

i::^:' r^r^n "cJo^rt:^ '^ -s . ... .e 

Cotitracls ill Rcslraiiit of Trade. 


I'r.n«,i« "V''^""''','""■"" """ —■»!"- 'fa. .Ci. w«,ld 
oni\ owratc where It oiiirht not fh.. ,..-; » e 

I should require clea. authority " ^'"" "' ""' ^' ""^' 

totton ui A,w,.j V. Davtes (1.S.S7) LR ,7 ,• , . „ ,.,, .; ■'• 

3«6 he thus refers to it :-•• I refe t thf r! [ f'' V '"^'"^ 
bv F orrl r,. f I.- , '^'-'^'^ '" t"*-' case which was (eci.'ed 

rti h .;:,"■„ 7- , ',"'"'' """-'■••••<llv he ,.,„1 „prc.s„„„s 
law. I '^""^ •' """"'l'"* »i<lfrview.ha„ 1 l„„f ,he 

la«-a lower v,c>v |x-rha,,s I „,„>. «,. „.i.h„u> disrc^iKTl l„ , ,, 

what I fhmL ■ '^'-^^'^•""t «>< trade ; and if so. ,t comes within 

»nat 1 tnink is now the tnip ml.. »k..» i i 'i-mi 

About that n^. \ , "" '* " "--asonable ,„ie. 
Bcnel^any •■ '' "" '"""^ ''"'••'■ "''■■' ' ""- .sa , ,he ea», 

n,ca„ r c„„™™.at,o,, TcH^haTe itn'XTrnt";,:':: 

at^d the telephone, are, I think, within the scope ,f the emu v 
and bear particularly on the quention „f ,,„ace • thL are Z \' 

rr, tji'hrr""" r *?"-^'" - '— --':i^nt : 

nature or I-'e'itr-"'' " It, "" f"' •■""-->in, 

.»^e twi :,", r zz T d'f '"' "■■""■°"' ""^^"« •"^- i"'' - 

that if thJ. ' '"^ •^"■'^^'^^' ^'^ « hard and fast rule 

that If the covenant or agreement of restraint were unlimited a.s to 

»•« ■l***'-^^^ 









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or. 1653 Eosl Main Strett 

r.— Rochester. New rork 14609 US* 

^S (716) 482 - 0300 - Phone 

^ (716) 288 - 5989 - Fa» 


Canada Lazv Journal. 

•t u-.s ao-irt from its reasonableness, invalid ; others holding 
space, It was. apart irom 11^^ . ..t w vvh^ch to determine 

ot traoe, 'j^ucu » • ■ .. - r.f thp rovenanter or 

for the pn,.ec.ic,n of the .rade "■■ '■-■".'^;%f^,*%;taeci,io„ of 

f -h » 6^0 that the covenant, though unrestricted as to .pace, 

private transactions, on the one hand, and ^he stern 

whole more in consonance with the ^^-^^'^^'^Ij^^r^on law 

country than some of the favourite dicta of the omm ^^^ 

. courts. I purposely say some of the d-ta, be ause ^ 

opinions of many common ^-^V^H '"ider vLv o poTcy, which 
clear and liberal recognition of the ^^er ^ e^^s o P > _ 
have influenced your lordships in the decision f^^^lfl^^^^,,. 
Lord Morris thus succinctly eP'to-- ^^ ^nd .^^ ^^^^^^ . ^ 
of Appeal in this important case ;- ^.^^ '^f ^.^ ^^ord Chancellor, 
the judgment and the reason for ^^^\2l . through the 
But I desire ^ ^P-^^^J J^::^ ly de^t with in the 
numerous cases «hich haie oeen authoritv up 

Cour, of Appeal and by your '"^'^'l*' f^^^' ^Lral restraints of 

.0 the present time ■^:;^-^.'^' ^l"^^: '^.^Z to me that the 
trade were necessarily void. It appears n , 

,„e for a ne. ,^eP--^ ^ -'X^ ^'l"d:ff:Lce in the 
St^dlttttriorinvalidate an agreement whether 

Contracts in Restraint of Trade. 


in -eneral or parf al restraint of tradin- These considerations, I 
consider, are whether the restraint is reasonable and is not a-ainst 
the public interest. In olden times all restraints of tradin- were 
considered prima facie void. An e.xception was introduced when 
the agreement to restrain from tradinjr was only tradin- in a 
particular place and upon rea.sonable consideration, leavin- still 
mvalid a-reements to restrain trading at all. Such a general restraint 
was in the then state of things considered to be of no benefit even to 
the covenantee himself; but we have now reached a period when it 
may be said that science and invention have almost annihilated 
both time and space. Consequently there should no longer e.xist 
any cast-iron rule making void an>- agreement not to carrv on a 
trade an\where. The generality of time and space must alwa\'s 
be a most important factor in the consideration of reasonableness 
though not per se a decisive test." 

It would seem the crucial test, in each case, has been reduced 
to this, whether the restraint is greater than necessarv for the 
reasonable protecti.^n of the contracted The reasonableness or 
unreasonableness of the contract and its sufificienc\- .to protect the 
rights of the contractor is a question of law, and is' decided bv the 
court and not by the jury. See Mallon v. May, 1 1 M. & W. p' 652. 

It IS by tracing back to its .source we are enabled to see how 
progressive has been the science of the law, and bv what slow, \et 
constant progress, it has evolved the admirable sxstem it now 
presents, and justifies the truth of the maxim— that what is not 
reason is not law. Such a research also exemplifies the force of- 
the aphorism— Melius est petere fontes quam .sectari rivulos. 

St. John, N.B. 




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Canada Law JoxirnaL 



(ReKistereJ in accordance with the Copyright Act.) 
Rile in Claytons case-Clients sellkii. 


decision ..f Byrne J., (.899) -'-I'^SS^ conclusion as to the 

Tr Sl^tst^oTXIhecfrof Appeal wete that the 
facts. 1 he tacts as luun / hankers a current and 

be the property of the h'-oker^^ ^^^^ ^^^^ 

owners' rights. Byrne, J., held that ^^^^/^^^^^^ „f Appeal 
n^erely as security for the loan --""^^;^^^ ^ t^,f,°^^^ '?.o 
found that it was n,ade to secure the^g^^^^^^^ ^^.^^^ ^^ ^^^ 

days before the faUure one P^-^^^-' ^^ ^^^^^,^^„,^ ^^ich was 

't^-^'ttoUercfr ttcco^^ forced part of the 

paid into the brokers cur ^^^^^ ^^^^ ^^^^^^, 

by the bankers, tnere balance due on the loan account 

los., to the payment of the balance ^^^^.^ ^^ 

and there was consequently a b-Jance d- ^^^ ^^^ 

the current -count apphcble to re-^^^^^^^ ^^^^ ^^.^ ^^^ 

of .^;790 4s. 6d., but the Co"rt of Appe ^^^^^^^^ 
held that the two accounts must be featea 

and that it was the duty of the bank to apply the £.36. 

Englisk Cases. 


1 1 ' 

in reduction of the loan account, and tlru the balance of the 
proceeds of the securities which remained in their hands belon-^ed 
to the owners of the deposited securities, and that Parker had 
no equ.ty as a^^ainst them to be repaid the amount of his cheque 
out of the ;^I362 los. ^ 

MARRIAOE SETTLEMEIiT-A«RP.EMrNT for sktt,.hmk.vt «v .nkant-Rp,., 

Viditcy. O'Hagan (1900) 2 Ch. 87, is also a decision of the 
Court of Appeal (Lindley. M.R., and Rigby and Collins LII ) 
reversmg the judgment of Cozens-Hardy, J., (,899) 2 Ch. 569 
noted ante p. 52). It will be seen by reference to that note that 
the judgment of the Court below proceeded on the ground that 
accordmg to English law the settlement in question, although 
made by an mfant. was voidable only on her repudiating it within 
a reasonable after attaining her majority. The Court of 
Appeal, however, have come to the conclusion that the settlor 
havmg acquired an Austrian domicil by her marriage, the settle- 
ment was governed by Austrian law, under which a husband and 
wife have the right to revoke their marriage .settlement notwith- 
standing the birth of issue and acts of ratification, and that 
therefore the wife never could ratify the settlement .so as to 
deprive herself of the right of revoking it. The Court of Appeal 
therefore held that th- ife was not bound by the marrLe 

:iHdr °\''; T^^'--- -^^^^ '■- P— e \hereof ha^^ 
validly revoked the same under Austrian law by a notarial act. 


Rozc/lsv Bebb (1900) 2 Ch. ,07. was a contest between a 
tenant for life and a remainderman. Property was given by will 
m trust for conversion and inves-^ient and to hold the investments 
on trust for a tenant for life and remainderman, with a discretion 
ary power to the trustees to postpone the conversion, and a 

In of ^^V •"'''''• "' ' "''""'■ "'^ ^"^^' P°^^P°'^^d the conver- 
Ann.° r ""i " ^•^•■''•""^••-^ •"^-'•-^t. but not, as the Court of 
Appeal found, in the exercise of the di.scretion. This reversiona^ 
mterest having fallen into possession and, having been realized '„, 


It b 


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Canada Law Journal. 

u • u, . r>f th.- tenant for life and rf maindcrman in 
,l,e proceeds I J- _^^^^ ^^ ,pp<„,io„ed b=t.v«n 

Scrcna'tforUfeand ,e,.,indc™a„ .,„ .l.e pri.cip.c laid *,w„ 
y« re Chesterfield (\i^\) 24 Ch. D. 643- 
UNDUE .MFLUEI.CE_H.sB.NO .no anu .uent-Ino.pkn- 


r/7 //• ,lr.rr,^ -. Th i^i the Court of Appeal 

„ 'Iv'm";; "anrtitb "^ Co't; l-JJ.) have , .„= 
(Lindley, M K.. and ki y ^j^ g ^^oted ante p. 54) 

'r'"r,l?.r;reut"«U out independent advice; and ,he 

:: ::l^:, etretru.';:" r>ndepende„. adv.= a, ,o 
her position and rights. 



- / R w^Kriooo^ 2Ch 138, deals with a question as to 
"^'''''MaTdsd serving of notice notwithstandi„g that 

,ea. for 3, y-«.J^- .^a i lu "oLes which w«e in 
S;:l''™o;r,ha:"';";:. bCo. *e co^^ence^en. of .he 

Jinglish Cases. 


acfon They were pulled down in 1.S9, and new buiidincrs 
erected and the plaintiffs claimed the lij;ht in question in rcspe'^ct 
of wmdows in the new buildings, which corresponded to windows 
m the old ones. None of the lij^hts had been preserved in entirety 
m the same place in the new buildings but substantial portions «'f 
all the new windows coincided with the windows of ,he old It. however, appeared that as to two windows in the 
new bu.ldmg the plaintiffs had boarded them up fur more than 
twelve months before action, and as to a th.rd, shelvin.. had been 
placed before it. but that, notwithstanding the shelving, a sub- 
stantial quantity of useful light passed into the buildin-^ Jt was 
contended by the defendant, that the erection of the boaTdin-. and 
sheiymg against these windows constituted an "interruption?' but 
Sterhng, J . who tried the action, negatived that contention, and 
held that an " interruption " of enjoyment of an easement of li^ht 
to be w.thin the Act must be an adverse obstruction and not a 
mere discontinuance of user : but he held that the question of 
whether the alleged right had been enjoyed for a period of twenty 
y>ars was one of fact to be determined on the circumstances of each 
case ; and he held that, although non user would not be sufficient 
to establish an abandonment of a right actually acquired, it might 
nevertheless be sufficient to prevent the acquisition of the ri-ht 
and, as to the windows boarded over, he held that there had \ot 
been an enjoyment for a sufficient period to give the pla ntiff a 
prescriptive right to the light to those windows, although 
admitting that the use of shutters or other temporary obstructions 
would not have that effect. He, however, held that the erection 
of the shelving did not entirely exclude the light and as to that 
window the plaintiff had made out his case 

COMPAMY-Debenture-Assicneeofdebentire transfer-Cross claim bv 


In re Goy, Farmer v. ^^^ (1900) 149, is a decision of Stirling T 
The facts were that after a joint stock company had entered upon 
a voluntary winding up, and a liquidator had been appointed, aid 
a judgment given in a debenture holders' action against the 
company, one, Robey, became transferee of certain debentures 
by way of security for a loan to one Chandler who had been a 
director of the company, and the conditions of the debentures 
provided that transfers of debentures would be registered on 





Canada Luxo Journal. 


production and proof of identity and paynncnt of a ^cc- ^mUhat 
The principal and interest of the debentures would then be pa.d to 
^e ulnsL-c without regard to any equities betwe.. to cm 
nany and the ori-^inal or any intermediate holder. After Kobc> 
had taken his transfer it was discovered that Chandler had been 
cu tv of misfeasance, and he was ordered to pay the hqu.dator a 
su m o m^ney ir. respect thereof. Kobey, who had no not.ce of 
IZll clL by the company against Chandler, sent .n h.s 
t ans er for registration, but the liquidator declined to reg.ster . 
and timed t^ deduct Chandler's debt to the comp-y Jro- t 
.mount due on the debenture. Stirling, J., held that he had no 
h rlht and that Robey was entitled to be registered as 
: atf ee and tta such right was not affected by the windmg up. 

orby the judgment, and that consequently Robey must be pa.d 

without deduction, any dividend payable m respect of the 

debentures so transferred to him. 

t*«LORO AND TeN*NT-LB.s.-FoKK^-^- - --;;^-- 

1--1..CM1NT TO RFPAIR — CONTINtlNO HKr.iM-ii ^»^ 

tn' A,«*v. Do,.M (.900) 2 Ch. ,56, the plaintiff sousht to 
recover pos-«ion of certain demised premises on the ground of 
f'rfe ure tor breach of covenant to build. The lease contamed a 
covenanrto build within twelve months, and also to keep ,n 
reoS *e buildings so to be erected. After the expiry of the 
Twee months the plaintiff accepted a <.-'-y-'' ^^^^f^f 
sequently gave notice of forfeiture by reason ° *; f -\°f 
c^enan. to build, " " ^e^, r/^ 1 1 at heT/.ha. the 
::::::. : SLas b:o".?;^;:ce for an . t,. expiration of the 


could not be maintained. How a covenant to repair can be 
b°oken when there is nothing in existence to repa.r, ,s hard to 

Buglish Cases. 


question H^ the deed certain leaseholds were vested in M,. 

i"?ooavear Th. ,u ^ • , ' ^'"'^ "■''^^■' '"^""'e to 

i.. the ivent o/^the r "" '" ^"■°^'''^° '°^ '"'^ ^ietermination 

contained no ' T"'"^' '" """^"'"^ cohabitation, but it 

judgment in their favour. ' ' " ^ont.uUon and ^ave 

WILL - •• Testamentarv expensrs,' what ,scuvdeo is. 

In re Ciemoxv, Yeo v. Cleuioxv (1900) - ch iS^ Th. . . 
POMU here determined bv Kekewich i .h '"■■* 

direction contained in a wi 1 to pa "the te t /"'"'"" "' ^ 

^f ~ .L- 1 " - tne testamentarv evtipnepc " 

of some th.rd person. He held that it extended to , Z "1 
and expenses of obtaining the letters nf . i • ■ "^^ 

adm,„i„enn. the estate o °su h tS pel TTttt"; '°f ""' 
of the ne... or .in .ho Kad bro^^ht'ir c't L" „ f.^ C 
Division contest n" an alleged will ;„ , u- u , /"^ » robate 
P-ouncin, a,ain:t the ^ ^^^ ll't 't^.^iT^:^ 

"•^i.:^:^^- - -1- ';^- -s^- ... - C. . .. ... 

In lie Mason, Ogden v. Mason ( i 

raised which depended on th 
the testator devised his freehc 

900) 2 Ch. 196, a question w 

e CQiiatruction of a 


Id shop at Wimbled 

a will, whereby 

and then devised to the plaintiffs "all other 

on to his son. 

my freehold mes.s 


'( ■ 

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I 1 

< t^ J i 

Camida U^v JotirnaL 


son havin;. fnikcl by rcas.n of h > »■"« » "" ,_, ,,„„ „„,,e, 

plaintiffs cUimca •l'^' "-'./r"""' *!, «««. inclinoj .0 ^M in 
,he sif. to then,. ^^1::^^^ of the auth-riucs be 
favour of the pla.ntiff». but on es s>n»<;.-" v, .»«mgs 

can,e to the conch.ion _f ■»-"'„ «h,.iaintiff. couM na bo 
,,«;,, l.R. f. Ch. 333. th= ■^-'^y'Z,^^, Act(. Vic. c rf.l 
construed as a residuary J- '^^^ ^,,^ ,.,„„f. ,„ ,„e 

,. ,;,,R.S..). c. '-»■'-■■."' 'fthe hosed devise to the son. on 
property,which.asthcsub,e«o hch ,c .^ .^^_ _^^^^ 

the Stound the «..rd I'"' ""■ „,„icted the devrso 



purchasers, under the V-J"' . "^ J.hTprop r'V contracted t , be 
Lclaratron that a marketab e "* " ^^'f^ ? „,>, ,,., „ ,e,-chold 
,„ld had not been made out Tlte 1''<>P „, ,,,„,„in2 

peblie house; the '=»- 7'"'"t„; ^Jh o"-« «- "<" '" "' 
without the consent of the '="■>'• ''"'"^^p^^ble and ,espo„sible 
unreasonably withheld ,n the case of a r pec ^^^^ ^^^^^^ 

tenant. The le.ase """"'^' ''J,^;,'',,, , 'performance of any of 
re-enter h, default of the "^s^'va ce a- P ^^^_^^^^ ^_^ ^ ^^^ 

,l,e covenants in the lease. The V^'f^' ,„, „„J ,!,at he 
essor refused .0 consent to an ass.,n nent o,^ t^ ^^. ^^^ ^^ _^^,,^,_^^ 

wished the house to rcrnant a '-j';"^^; „^, unreasonable and 
that the refusal of the lessor «<=-»;"' ,j ,, ,,„j,y nrade 
,l,at. in eonse^uence, tne -"";„:„.„, ,„ indemniiV the 

;rie;r u:r\.e::\i:;^;a^;r^tdart:i:ed 

«,T0.««-.'o«« - "--' ' ,^^ plaintiff claimed an 

. '"rt:-:n\Se?en';ew;.hhi>.U. ^heplainti. 

English Caws. 

was a purcnaser from a morttrat'cc at a « .in , , ; 

ac. .,:"■'',,':' 7';"'' ''""'•'■■ "■="' ">"' '- "'*' The 
builder sevci. hi , r""";. ""'"" ""•' '"^ ''"''■'"• -"I <hc 

to ac,,.,irc in Ontario a rish, • , , ,0 „, '!f; j I', t '^° """" 

implied grant as in this case. a-.|U...l."n by 

.■.= p. .-. htd zs ': t„: sr ;'",h "";-, ■"^- "'"'- 

that tlic <,.it..oin.' mrtn.r „• . "'''^"''"'"' ""-• •'•"=l>:« imividcd 
nci«hb„„r„„"r"CcfeX tl"" 'l 'T'" ""'""^^ "' "■' 

injunction asked, holdin-. the case to he '■■';■ r"'""" """ 

«"" ( .896. A.C. 7 ,„ote3 ante ^j' ,'V;: ""'■' ''' ''''■' '■ 

P.K,T-,....,«...,..vr-,s„..vr,o»-,,„,„,,_ ,...„„,,„,,„. 

acti™t:::irri:;'-'- "-"''"'' "^°' ^ ^'^ --^^ -^ - 

and, in the ai;::, ve 0:'^"?' Z? ^7'. ''' '""""'"'■ 
exclusively ntanufactu,, aZ^d and thT' ,'" ''"'f'"" '"' 
infrinjment adduced w, 1 , ""'>' =»"l=nc- of 

plaintiff spatcntT'elaed to, h ^''P"' """ '-"B"! >hat the 

producinjhearticler :, oTaXr ^t"' ''""" '""''' "' 
tell, from an evamm.t; ^ ' '^ "^^^ "°^ possible to 

paten. prres^TraTrd ^eT '^rli^^t '""'. """"'- 
produced under ono or nth r!u ? ^ '"""^ '''*''^ f^^en 

patents. Coze„s°Hardy J "h: d haMh^ "T' "^ ''^ "■»"""''' 
"aray. j., held that thrs evidence was insufficient 


I - Tf 

I V 


Cauadii Lai^^ Jotnttal. 


. 1 a It failcil to establish which 

,,a,c,it» covoreJ cv«> l>'»;""- ' ,,„„„iU rcliuf of da,i.aucs. a, 


of the pateiitca article. 

cost. r.>s.,.>no»so,KO.K..N.«._>-"- ^^^^^_^. 

„„,,,,, he,c. Kid .ha. a sou. o.«ac„,.^^^ 

administration f--"'^,^;, "'^f^ .^ „f the litisation. tnadc by 

was referred back to fix the quantum. 

e. 68,-tOK.K.N MARK..U.F. ^^ ^ ^^^.^.^^ 

'I'^-^u Vand EnMishwoman was in 
Frenchman and En ^^ 


n.arria,e between a F--^--^ ^^J^ before the British 
question. The marr.age had b n p ^^^^ ^^.^^ ^^^ ^^^^^,^, 
Consul at Bordeaux and sas n ^^^^^.^^ ^j^^^,^^. 

Marriage Act. .849- wh>ch >s '^'^.^"f ^^^^ of both parties. 

Act, IS93 A French ^nbuna ad. ,n the ^^^ ^^^^^^^^^^ 

declared the marr.a^e a nulht> and \ ^^^^^^,^, of the 

Hved apart, ^he husband havmu -d^^^^^^^^^^ ,„ his 

wife's father, who had ^-f^^^^^Z^,^, settlement was void 

Englisn law. _,^^, to sign 

,„ ..,.„.,»» V. /.V^., 1'^:;, ".faU'ot'^t^lc.. tea. 
mined that where one gues another 

/:iii^/is/i C ivt :. 


estate ami a^Tccs to pay a com.nissior. on the s,lc. there is an 
nnplicd authority also -ivcn the a-ent to si-n the 
on behalf of the vendor. 

)c contract o sale 

COMPANY- n.KKcroKs- O.or.m Ah r „ ,.k. oi AssoruuoN. 

/'ir,na»io/Syn,nujoc>) 2 Ch. 272, was a u mclin^-u.. pro- 
ceed .nj; .„ the validity of a sccur.ty «ive,. bv the diLtors 
of the company was in .|uesti,.n. I?y the afcles of ass,,, ,ation it 
was provulcd inter alia, that the nun.ber the ,nen,bcrs of the 
counc.l of ad.ninistration (which was invested with power to 
conduct the affairs ol the com-.any) should not be less than three 
also, that the continuing' council mi^rht act notwithstandin-^ any 
vacancy, and hIso. that the council miyht detcrn.ine the ituMurr, 
necessary for the transaction of business. The men.b of the 
counc.l became reduced to two. It was alleged, but n.. proved, 
hat the quorum had been fi.xe.l at three. The transaction whercbj. 
the security m .juestion was -iven was entered into bv two of the 
d.rectors only. VVrif,'ht. J . held that even i'" the quorum had been 
hxed at three, yet under the article empowering' the continuin-^ 
councl to act notwithstanding any vacancy, the transaction was 
bmdmg on the company, the transferee having no notice of any 
irregularity. ^ 

ill 11 

■T IM'I 


-% I 

• ilr 

Mr. Kflward D.cey in an interesting article contributed to the 
FortmgMy Rev^eu. .n the late Lord Kussell. refers to an incident 
which ma)- be repeated for the comfort of any of the .ounger mem- 
bers of the pn.fession. who may be placed in similar circumstances. 

ofV-Tf ^/^.'^tT'"'"'^' '^'■'"^'^'^ '^"^ keenest disappointment 

of his hfc was h,s failure to obtain a post in the gift of the Liverpool 
mumcpahty, to which he felt he had a .strong claim on his own merits 
He added, however, what he thought a calamity at the time wr 
really the greatest stroke of luck which had ever'happcned to him 
If, he said. "I had been elected, I should have lived and died an 
obscure stipendiary official in a provincial citv; as it is-—" and 
here he left the sentence unfinished. Others besides the eminent 
Ch.ef Justice have been thankful that they have been disappointed 
.n obtammg some position u hich v.ould not have given them .m 
opportunity to shew the stuff that \vas in them. 

\ - 


Canada Law Jourual. 


"^^I^^^^^^L LA IV A MENDMENT. 

often bears very hardly jtoe'vmg c«e. ^^^ ^^^^ _^^ ^^^^ ^^ 

When a (— '' ^'f ^ ^^ -veral weeks and sometimes 
a public srrcet or road t^ ^^^'^J,,,; ea,.. He is ignorant of 
months before he '^ o"',"' *= ''° ,^^ ,„e may be, and docs not 
I...C seven or thirty days notice, as the -^ 

.hinK of consulnng a lawyer nn ., he rs^ahle^ ^^^^„ ,,ough 
The consequence .. that ^"""^ j^^ g^oss negligence of 

no fault of his own but o^^^^^^-^^l^ .? ,,, ^e infinitely 
the corporation l.c has no •^^'^^?^'^ ^^^^ ;„ ^he Workman's Com- 
.ore fair to have a pro-on such hat .n^_^^ ^^ _^.^^^ ^^^^ ^^ 

pensation for Injuries A^^' ^'^:^^"' ^^.^^^ commenced within 
^iven within twelve weeks, ^"^ .f^^^ ^'^'^'dent or in case of death 

L months from the 7-X^ Le of dtth. and that in case of 
within twelve months f-- he time .^ ^^^ ^^^^^ ,^ 

death the want.of such not^e^^^^^^^^ ^^^^^^ ^^^ ^^^, ,,,, 

of the opinion that there was re ^^^^ ^^^^ 

of notice. In my limited -P^^ for Tevere injuries could be 
to iny notice where no --P-^^^ J" required by the Act had 
obtained simply because no notice as requ 

been given. . ^..nirinal corporation not more 

I believe that the solicitor for a "^"""^^"^^^P^ ; ^he Act 
-1 r ^ Hamilton was instrumental in genius 
than lOO miles from Hamilton wa -^ent as it now stands 

an amendment of this unjust provs.on made? 
Hear from other readers of your jour^nal.^^ 

Hamilton. October 25. 
I [We concur. See remarks on p. 609 ante.-Kn. C.L.J.J 



To tne Editor of the Caxa„a Law Jouknai 

profession, has tal^^ ^ ^l^Z rf' ''' °^^^^" '^^ ^^^ 
columns to correct some errors T,u,^ J^""^''^^''^" '" your 
place my vieu.s clearh so Zt " k'"" '"^"' ^^"^"' ^^^ to 

f -■" deal first uith the errors " """' ^ "" '"'-"^--tanding. 

that^:z:h:;::^::::^ ->ne, = 

a^ a <Iass. and that I chared ruht"'' T'"'' ^"^^ '^'■"^'^■'^^'«" 
repl)- 1 say that I did not make chL"''' 'T"'^' ^'^'"- ^" 
a^-ainst the system of the .dTTit i -f t ^ 'r'"'' "^^ P'-ofcssion. but 
has been in use. with con! ^ a^^^^^^^^^^^ ^'"^I'^^- ^^'^'^ •^>-^tem 

of years, so that the present men h^r ," '""""^ ''' ^''' '^""^'""'-^ 
the practice and trad^S^ ;^:^;;^^f;7;^---nly ^^lo. 
«rong, and that it should be If \, ef that the system is 
handed do.n for .at ,e erTt^r^et '^^■^^■^' '''' ' ^^^"^ 
denounced the institution tvitZh ^ u ""^'^ '"'^ht have 
upon the character of he's 1 ^"^ ''^"'^"^ "'"^'^ ^^^^-ting 

Slavery has been reformed oi f "■'"'"' "'' """ ^""^ ""^^^ '^ 
and uhen the pub ^S " ^ "'''"f '" ^''"■^''•-^^^ -""tries, 
-ethod of admL-s rinJ au ' Than "^ ^""^^ °^ ^^^ ^--^"t 

and this could be done wit tut in^s rer^h; "^'^^ " ''''''' ''' 
the profession. That I attarL-T .f I P''''^"* members of 
■system is your first error. ^' '"°^""'"^ '"-^tead of the 

are;:;;;:^^^::;;!^""^ ^'^^ '^ ^°^^^'" the Ponce court 
■statement can.lf ,i\V:P7;^''"" '"" '" "^-^- ^'■^■'' ^^^^^ ^his 
Police Court except uhennnT ' '"■' '^'*"^^'^^">' "° ^osts i„ the 
of one dollar and c. si hlT T >' P""'-^'^""^^" ^^■'-^" ^ ^-- 
-ent. the pa^-ment of the ou d^H '^ j'""/" "'-^'^ ^'^^^ P""'^'- 
tl^e fine four dollars w thou r ^ '°"'^ ^"^^ "'^ "-^^ '^^^e 

require a less severe ^Ze^ 1 fi "'"" '''^ ---stances 
^-th..ut costs. 1„ wa^rctr I " "'"'''-^' ^"" ^''^"^'•^ 

f i'-Pose them simpi;t ^^ ;^::r P^^'-">- - -t^ -iess 
-Hout any costs, and poor^mpl^^' arJ^.^H::;, ^^ 





Canada Laiv Journal. 


" .A T u-n oositive that there is no 


^"Ls exix^nse than in the '^^^^j!^^^l,, ...U than any 
You intimate that I am h.,hb 1-^; «^^ ^^^ ^^.„^, -^hese are 

other judge, and that my -^ -^"^/^^^^-'i^,, ,f police Magistrate, 
also errors. I did not ask f" ^e ^oMt. .^ ^^^ ^^^^ ^^^^^^^^^^ 

An offer was cabled to ^^^^ I ,, ^^ . ,ear. That 
of Sir Oliver Mowat. M> ^alar .^^^^^^^^^^^ enormcusU- 

was twenty-three years -^^\2t^\. ^.^ sits three after- 
since then, but my salary .s st.U $4POO. > ^^^^^^^ .^^^^^ 

noons a week to try the by-law case.. }'^l^^^ ^^^^ ^^^er serious 

r- J I have to ho d court to try mclictaoie cii 
in Canada. 1 have to n ^ yblic holidays. I he 

offences every day except ^""^'^>; ";;.„ ^.^hs' holidays every 
judges, who do not ^t every d^>'' ^^^ J.^^^^, , .ever get a day 
iummer, and ten or fifteen ^^y^^^"^^^ ,,,w, whether I am 
without having to pay an ^--.^-^^ ^^ J^^^ ,^0, in this respect is 
well or ill. I know of no ^^^^^^^^^^^f:^, ,,; never be absent 
treated as I am, who has no ^ol da> - ^"^ ^f ^-^ ,,,,, packet 

from $50 to $100. j„ j,j,j „,y views in 

Having now corrected 'h'^'^ J'°'' y The State has 

reference to the ^d-'^r"?" ^i^l <li pu between citizens, 
taken upon itself the duty °f»^"'^,;"P"i„,„ barbarism, where 
This is an absolute necessuyunteerelap ^^ ^_^^^_^^ ^j^^_^ 

no man would have any "«''*\"'';' itself this duty, and having 
W force. The State ha-ng aj^e" P» '^^^^ ^„^,,;;,„, , „,,der- 
the power of organized government o ^^^ ^^^ ^^^ 

takes, it follows tha. the '""-f'^^r i he ,1 s in its hands. . 

svstem which the State 'lev»=- anrt - "^ „, ;„„ „,,. 

hold therefore that when »">=„.» a peaceably ^^ ^ 

laws, paying his taxes, a"'^ - > -™ ;, °^„, ,iffi,„„y or dispute 
society, that he rs ent.t.ed .f he c ,„emselvcs. to 

with a neighbour wh.c th^y^^ ^,-, ;„,,,, ,, ,„„e, and 1 .eel 

:,;:t:::iy ti t P^."-<' - *= >-• ^°^""= ^"^"-"^ " 

"" wwh-alis the usual course under the present system^ Two 



neijrhbours in a business transaction have a dispute or a misunder- 
standing It often happens that there is a f,rood deal to be said ..„ 
both sides. The differences, however, are irreconcilable, and th-^ 
citizens have to appeal to the State to decide. One citizen -oes to 
his lawyer, lays the whole case before him naturalN- with Ins own 
colouring, and gets an opinion on the law. The counsel knows 
well that no one can positively- tell what is the law. but probabiv 
gives an opinion that his client has a good case, and one that is 
worth fighting in the courts. A letter is written to the other side 
or a writ is served, and the defendant goes to his lauver for advice 
The lau-yer hears the defendant's statement, looks up precedents 
and advises him to defend the casc.although he also knows that there- 
IS no certaint)- as to the law. The case is now fairh- started and 
the costs begin to roll up. Motions of all kinds can be made-to set 
aside appearance, for .security for costs,^ for particulars of statement 
of claim, or defence, to strike out statement of claim or defence for 
better and further affidavit on production, to compel attendance of 
witnesses, and so on ; then the examination for discoverv and 
other examinations, conducted at great length, and with tiresome 
reiteration and repetition all taken down in shorthand, all extended 
m full, all rolling up heavy expense. Then after all motions 
and filings of affidavits, and examinations upon them, and attend- 
ance, and drafts and engro.ssings. etc., the.'case at last comes before 
a jury Technicalities of law are brought up, and discussed and 
overruled and reserved. Then witnesses are examined again with 
the same reiteration and repetition all again taken down in short- 
hand. Objections are raised to questions. These are also argued 
and the objection sustained or overruled, with points again reserved* 
These things all tending to the minds of the jurv as to the 
real merits of the case, which are often to be found on both sides 
Ihen follow long arguments of counsel, then the judges charge 
then the objections to the judge's charge, the reserving of more 
points, with the result that the jury will probably give the verdict 
one way, while the judge has reserved law points to settle whether 
the decision should not be the other. 

The case may then come up before the full court, and the points 
of law concerning which Kx^ the law is the great science our profes- 
sion claim it to be) there should be no question, have to be decided 
Ihree judges, supposed to be experts, impartial, upright men, who 
have devoted their lives to the study of the law, sit for hours and 





Canada Laiv Jotirnal. 

precedents <i"»"^- ""^« *,= ^u. the reason apparent 
of the cnnsel on both d« y -.^ ^^^ ^^,,^ ,,,,„,, 

•^:Z^t^^ '-n two ^of th'e indges .U, decide one 
"■"Vh::!trap;°aHrta.en to the Court of Appeal, and the sa^e 

.h,nrh;:;en,''oni, the '^j^^z:::^^^^ 

'"" '"TS'rrr^C; Ihrit^ts ani ar,u™ent. 
way and three the o^^^r ji ^ .^ the same old 

T„e„ <^:^^,^;:ZX^Z:^ „!„ decide one wa.. 
story IS told «ith "«/""'/• , ,„j:,ij| Committee of the 

^itrc^cra^a th^a^ q -t aLTht;=;v^ 

tTe tUld S: Z =e"tt.^frnU. so mnch a.nt 
precedents as alMUt justice ^^^^ _^^^^^ ,^^^^ 

Then what happens ? 0"= ">" ;^^ ^, .^er in the wrong, 
neither being altogether m the "f '• ™''f '. ^^^^^^^^^ ^i, o„n costs 
but one gets everything the ° *" '°";f;;,^;Sma„is heavily 

r :rre S '"r;:^ c^ ,„ rru^e t^s .ouM probany 

'::.;„t"t:thiusa„ds of donar. if ---;;— -;^:f.: 

have been as -f f-'j: '''*^ ^tTl op^"; decide it at the 

rrnS b? rtTemrredlhlrr^n oTce in the law cannot 
Start. It must be «-«^"^ ; ^^ „ or a rich corpora- 

:,rhlm„st'::S::;::v:u";hl:rrghttohave.heca,e decided or 

run the risk of rum^ remarks.and expressed 

„.CS:9^^p^----— sT-S 

r^:;:.' to:id^eynUes £^^^^^^^^ 

formalities. »^:;*--^ ^ ^^ ^i^o^eXal which should 

n:^t^ -rpt^nts, Pe^a^ - -•-: ^ ^^ 
by, should not be wo .,.p,.ed or '<; '"-•' j°J ;ti„d and hired 

Reports and Notes of Cases. 


evidence, there is no occasion .vhy disputes could not be settled in 
one tenth of the time and at one twentieth the expense now 
incurred. ' 

Yours etc., 
Toronto. rcr...,— i- t>w 


[As our readers are lawyers as well as ourselves, we do not pro- 
pose further to discuss the matter except in the few remarks made 
on a previous page, ante p. 610.] 


dominion of (ra?ia&a. 


Admiralty District of Prince Edward Island. 
Sullivan, Local Judge.] ^^^^^ ^^ 

Brine v. Steamship " Tiber." 

Collision-Steamer and sailing vessel- Arts. 20, 22, 23 and 23. 

The J.M. a sailing vessel, was proceeding in the day time out of 

Charlottetown harbour by tacking, according to the usual course of naviga 

non. The T., a steamship, was on her way into the harbour. When the 

T. was first seen by the J. M. the latter was on a course of W. S W 

of^RocW r'Vu ."k""'' '°""^'' ""^ ^° ^^^ "°«hward and eastward 
of Rocky Pomt black buoy. From that time unti. a collision occurred 
between the two vessels, they were in full view of each other. WhilefSe 

a^ hou?thr7 "'^^ °" •"'' ''"^""'^ '"""^ =^"^ going about three knots 
T^X:. A' ''"' f"""^ '''^'g*^' "P "^^ harbour at nearly full speed. 
The latter did not change her course, nor execute any man.^uvre nor 
make any attempt by slackening speed or stopping or reversing to keep ou 
of the way o the J. M. The bow of the T. struck the J. M on the star 
board side aft of the forerigging and nearly amidships, cutting her almost 
t^hrough from her hatches to her keel, and causing her to bec'ome a toul 

Held, that the T. had infringed the provisions of .Arts. 20, - .^ and 
collision' '"'" '°'' ^'■'''"''^ '°'"''°"' "^ ^'^ ^"-^ "^^ r.s^on,;^{^ for the 

MoX^^, ?of d^df f ^''' ^•"- '- ''-^'- "-'^ ^^•^•' -^ 

• 3 


i r 

\ 1 

> 'I 




Canada Law Journal. 



. .J n Rrioham v. Thf Queen. [J""* 7- 

Gra«/ oj je y j^^ma^es- Liability of crown. 

The Crown having granted ^.^ ^^^ ^ H^^^^ 
the Ottawa Rwer .etween the '^^i;'^'^^;^^ ^T. .U for the con- 
leaded certain property to tw-o ra.lway ^;" P;""" ^o ^^^^ ^^^^ 

struction ot a bridge across the -'^"r^J'^;, Railway Company to 
gave permission or license to ^»^^^^tta. a Lkc nc y _^.^^ ^^^^^^^^ 

txtend its track over certain property ^^T^''lX^^^^ ,„ „,,ke closer con- 
sent on the Hull side of the "I^J^ J^'l'rhe'uplJLu claimed that such 
nection with the Hull KecU.c Company rhe^.pp ^^^^^ ^^^^ ^^.^ 

leases and license enab ed ^^^^^J'^^^f^'Pt^l^Vfor which the Crown was 
ferry, and constituted a breach of his terry gram , 

liable. . , , j license did not constitute a 

HehU that the grantmg of said lease, a"d 'icen ^^^ 

breach of any contract arising out o '^^ f^l^^ ^'^^ ,, ,^. „.atters 

Crown was not liable to ^*^.^.^"PP^\^2;2//"J!,„„,;,'/,V Railway Co. v. 

complained of ^^ ^'^P^J'^-./^^f c^^^^^^^ and' ^././«. v. Great 

The Queen, 10 b.CK. 335 > " i^*^ 

iVbrM^rw Railway G;., 2 QBD. "'l;'„7J^_,,.°diced the rights acquired 

combe, Q.C., for respondent. 

R KH n The QiTEEN V. Harwood. LJ""^ ". 

/«.r.aW z'«/«^ by reason of public work. 

Oefendants owned a -ai. propeny^^^^^^^^^^^ 
reuil and Soulanges, a portion of -^^-^ ^J^^ ,,, ^f the 

purpose of the Soulanges Canal. Access to ^^^^^ ^^^ ^^^ 

defendants' land was cut off ^lyjj^^^^^^^^^^^^^ „g to build and maintain 
visions of 52 Vict. c. 38, s. 3- filed ^" "'2^;™ ,^^ ^,e of the defend- 
a suitable road or right of way acros-ts p^opert fo t ^^^^^^ ^^^ ^^ ^^ 

Reports and Notes of Cases. 


action, the Court took cognizance oi such agreement in pronouncing judg- 

3- In respect to the lands taken the Court declined to assess compensa- 
t.on based upon the consideration that the lands were of ,nore value to the 
Crown than the; vere to the defendants at .the time of the taking. Steb- 
Tjfn -^t'^'^fJ:'^ ^^'^'-'^ 0/ iyor/<s, F..R. 6 Q.B. 37, and Faint v. 

Ihe Queen, 2 Ex. C.R. 149; ,8 S.C.R. 7,8, followed. 

A. Globensky, for plaintiff. C. A. Harwood, for defendants. 


Burbidge, J.l Larcse v. The Queen. [j^ne 11 

Exche.}uer Court Act, s. 16 ^c)- Rifle range-- Public work" -Injury 

to person. 

from the nfle range at Cote St. I.uc in the District of Montreal. He 
sus?ained^^""°" °'" "^^'^ '''''™'"^' ^''"'''^^' '°' ""^ '"^'"^y ^^ ^^^^^'^V 
Jfe/d that the rifle range was not a "public work " within the meaning 
It thTr'^ ■ '' °f The Exchequer Court Act (50-5. Vict. c. 16), and 
that the Crown was not hable. City of Quebec v. The Queen, 24 S.C.R. 
440 referred to. 

respondent'""""' """^ ^'"'"'' ^°'' '"PP^'^"'' ^- ^- ^ewcombe, for 

Province of ©ntario. 


From Robertson, J.] Bogardus v. Wellington. [Sept. 22. 

Statute of Limitations-Sale of goods- Warranty-Fraud. 
The defendant, who was a nurseryman, sold to the plaintiff a number 
trueTotame ■' -^"""^ ^ *''"'^''''' '^''' "^^^ '"''" " ^°- ' P"^"''"' ^'^^^^"t^d 

t.o.^'^f ' '^''^ ^^J' ''■''' ^ "■a^'-anty that the trees were of the varieties con- 
noM 'Tu '^'^ '•'" ^'"'^ ^°"'^ '^^ °f those varieties; that the trees 

not being of the varieties contracted for the warranty was broken at the 
me of sale; and that in the absence of fraud an action for damages for 
us breach brought more than six years after the sale was barred, alLugh 

Zt^^l T '^™' '"'° '^"'"^ '^°"'y ^^f°^^ "^^ ^^^io" it^as impossible 
to tell that they were not of the varieties contracted for. 

Judgment of Robertson, J., reversed. 

n r ^'*'f\ S;^; ''"'^ ^- ^- ^->'^^'""^«. for appellant. Lynhc-Staunton, 
Q.C., and/ //: Ingersoll, for respondent. 

■'i 1- 


Canada Law Journal. 


r T 1 Stroud v. Wiley. [Sept. 29- 

From Armour, C.J.J u i„irrest b\ co-partners-Errors m 

business .he interest of a P"'"" '.„ *rtrthe proto standing .t his eredtt. 
byhisco-partne..foran.mo2<e4U»l>"> P , „f hi. • „taU. 

hi, salary to the ume of *= P"''^,';^' Xh »as based „po. ..atentents 
sho«n in the last yearly balance sheet ^^^^_ ^^^ ^„„,h 

prepared under the '"P'""'"" f *l,''Jhis action alleging that par. of 

eomprotnise, and not as an «*""' J^^'^,^ in good faith and in 
rrr^Uh-"*"-- "- "-"- •- -'endant.asnot 

''°''b=^:'Q.C:rrd i-'^. S^'ISf. for appeUan.. ^.«-. Q.C.. 

for respondents. 

[Sept. 29. 
From Divisional Co.:t.] ^^^^^^ 

Ferguson v. Galt i-uulic 01, jr/.Wv;/^«V com- 

;..«.a//c.«>r /«y/m^^ ' .^,ed by the defendants to carry mortar 
The plaintiff was a laboree-pl^yed by t^^ ^^.^^.^^ ^ ^.^„ ,,, 
to masons, also employed by them J ^^^ superintendance 

defendants' land. The work -^^J^^^f f^^' ilt, directed the plaintiff and 
of a foreman who, after tne -^"^/^^j^ I" order to enable the plain- 
one mason to do the tuck-P°mUng next day^ ^^ ^^^ ^^^^^ ,^^^ ,,,^, 
tiff to take the mortar to the mason at "^^ ^ ,^„ks which had 
111 the mason and ^^^ P'amt.ff made a ga .ay, ^^^^p ^^ ^^^ ^^.^^^^^ 

been used in the scaffoldmg, ^^^J^^/.'^P^ ^^e plaintiff was walking on 



and the plaintiff being fellow-workme^^^^^^^^^ ^^^ ^^^ ^^^^^^ l,„„g 

,he proper means of -co-ph^^^^^^^^^^^^ 

strong and suttic.eni for the P"''?"^^ 'f^ under the Workmen s Compensa- 
W, also, that there was no habduy under t ^^ ^^^^^^ ^^^^^^ 

tion Act for Injuries Act the mason "OtJ^mg P ^^^ ^^^^^^ ^^ 

the plaintiff, in respect of the -"f.^/^fj^'^uhin the meaning of the 
conform, and the gangway not bemg a way 

ileports and Notes of Cases. 


Act, or constructed by a person having, in regard to it, s pc-rintendence 
entrusted to him. 

Judgment of a Divisional Court reversed. 
Lount, (,).C., and W. D. Card, f(;r appellants. 
A. Munro Gtier, for respondent. 

From Boyd, C] In re Ali.e.v and N.asmith. [Oct. lo. 

Landlord and Tenant~Lease-Covenant~Keneual-Re,it. 
A lease of land, upon which there were no buildings except an old 
shed, contauied a covenant by the lessor to grant at the expiration ..t the 
term if requested " another lease " to the lessee 'for the further term of 
wenty-one years" at su.:h rent as might be agreed on or hxed by arbitra- 
tion, such renewed lease to contain a like covenant for renewal " • - 

Held that the rent for the renewal term should be based upon the 
value of the and at -ho time of the renewal, and not upon the value of the 
land and of buildings erected by the lessee during the term. Van Ihocklin 

folbwed ^^ ^^^'^' " ^'^'^' ^"^^ ' "^""''^ '" "P^^^'' '^"^ J'^'""' '^'"'^ 
Judgment of Bovn, C, 3, O. R. 335, affirmed. 
Aylesuor:h, Q.C., for appellant. A. J. Russell-Snow, for respondent. 


Boyd. C, Ferguson, J., Meredith, J.] |0^,t g 

Hill v. Ingersoi.l and Fort Burwell Gravel Road Co. 

Contract-Road company -Implied covenant— Corporate seal. 

An agreement in writing signed by the plaintiff and by the superinten- 
dent of the defendants' road, but not under seal, and not purportini,' to be 
made by the defendants, who were an incorporated road company, Vas in 
part as follows,-" I "_,he pla.ntiff-" have this day agreed with" the 
defeno^nts "to furnish good gravel and deliver the same in the centre oft he 
road bed . . . and the company agree to pay me at the rate of $2. 40 per 
cord ... And it is further agreed that my tolls . . shall be free 
during the full term of this agreement. And it is further agreed that in 
consideration of this agreement and for the sum of Ji I do 

discharge all claims I hold against the company . . \„d it is 

further agreed that this agreement for gravel to hold good as long as the 
company keep the road and as long as my gravel holds good. . . . - 

ffeld, that an agreement on the part of the defendants that they would 
take from the plaintiff all the gravel they should require for the portion of 
their road referred to in the writing, as long as he was able and willing to 

I H 


■ 1 ' 


Camda latv Journal. 





,Z« or guva from ano,h« 1-- «» ^d . c„n»-a..on >., an e«eu. 


an agreement under their corporate seal. 

Judgment ot ARMOUR, C. I.. amrmea_ ,-. AW/a/>, for 

/•. .4. ^«A'/'«. for plaintiff. ^"W^/^ ^•'-' ^"" 
defendants. _ 

[Oct. 8. 
Boyd, C, Ferguson, J., Meredith, J.J 

Foster v. Ivey. 

Morti^ age „Jtgagee and assignee of equity^ 

The relations which exist among ^^i:::^L^'.^ZZ 
of the land who has agreed to pay '^e -nortgage, are 
among creditor, surety and principal debtor^ 

AUous V. Nicks, 2. O. R 95- approved. ^^ ^^ 

-^^t^:;g^.: "Covenant to pay en^ ^ ---V:^^^ ::>^ 
when sued by the mortgagee ; ^^^^^^^.^'^^^^^^S aga nst his assignee if he 
the land back, or to have unimpaired J^™?^'^; J^ ^^j ^y him at the time 
has sold the land ; and if tho^e ^^^ ^^ ^^^s ^e th/re was such deal- 
he is sued, it is ''"'"'^^"'=1^71 ,no"gi«^ ^' """^'^ '^'" ^''' 
ing between his assignee and the mortgagee 

with such rights. . . . 

Matters v. Helliw^ U, 10 Gr^ i73, -plarne^ ^ ^ ^^^^^^^.^^ ^^ 

Dictum of Maclennan, J. A., in Irust a 
A. R. 167, dissented from. ,„, ,0 S C.R. 126, followed. 

Barber X. McCuatg, 24 A. R. 492. '9 • ^^//;««//,, for defendant. 

D W. Saunders and Cattanach, for plaintiff. Hellmut , 

Boyd, C] 

In re Rvan. 

[Oct 8. 

order-Discretion to refuse-Rules 946, 95^-Fnnd- 
Savings deposit-Survivorship. 

.,,„e ,s no., a d.c..o„ unde, ^^^:>^^S:^ 

rr„r: — 7= -"T; r^s' .!< ..e .o„d ,.„,. »„, 

'"""order refused .here .he -.ido. of au imesufe .as clearty enuded ,o a 
fund .hich .as ihe only mauer in dispute. 


Reports and Notes of Cases. 


Where a husband de{K)sited money with a savings comnan v and caused 
an account to 1. opened in the names of himsei. and hi^l p uly'' o 
be drawn by e.ther or m the event of the death of cither to be dra^ liv tK 
•urv.vor," and u appeared by her evidence, uncontradicted lutmo-t^ of 
hers went ,nto the account and th.t both drew from .t indi;;;,m:atd>'! 

/^/,/ that she was entitle.! .s survivor to the whole fund. 

iv. J.J. Lee, for appl; u.ts. Home Smith, for widow. 

[Oct. 10. 

Meredith, C. J.J Gii«on v. Nelson. 

Notice of trial-Close of pleadings- Rule 36? 
A reply de'-vered by the plainti.T joining issue upon the statement of 

D. L. McCarthy, for plaintiff. /. H. Moss, for defendant. 

Boyd, C] 

Langlev v'. V.\nAllen. 

[Oct. 24. 

^"'ZT AZir^''''T~^'''' <'^^"'"'"'-Onus- Voluntary ^ay. 
PrlJi^. '"-'^^^^^""for creditor -Particular crediton- 

In an action by certain creditors of an insolvent and by his assiL'ne^ 
for the general benefit of creditors to recover from the defendants who 
were also creditors of the insolvent, certain sums of money ^1; the 
msolvent to the defendants before the assignment under ?he terms of an 
alleged secret agreement: °' ^" 

Held that the onus of proof was on the plaintiffs 

Held, also, that the payments not being procured bv u~iust on,.r<.=ci„ 

Review of English cases on this point, 
recover '""''^ ?' °'^'' '^l."'"'*^'' "°' ^^'"g 'he whole body of cred • 
an order under R.S.O. c. 147; and no privity such as would cive a n>ln 
o act.on was established between the creditor pla.nt.ffs and he ^el'dan 

pla'iffsTnTd'f 7" "^"T" °' ^™^'°^ P^y--' -''-^^ 'no tt 
atreemtt '"^'^ "'' ^'^ '"^°'^^"^' ^^'^ '« '^^ alleged^ecre! 

C?..r,v AV/v, for plaintiffs. Staunton, Q.C., for defendants. 

f !' 


i /: 

- 9; 


Canada Laiv Journal. 

642 ______ 

„ , n loNEs V. L.NDE BK.r.sH Rkvr.oerat.on Co. lOct. 24. 

tion wUh his service or agcMUjy fan .t^^^^^^^ P^ ^,^ ^^,^,,,, „ the 

The manager of a cold ^* ^'^''^'Py ^^ ^^ some changes uUhe.r 
company, undertook to adv.s.- -^^'^^'' the purchase hy the 
plant, and used his pos.t.on ^ ^/^^J^j,,,,, .-ho had prom.sed h,m 
Lat company of a "«^7 -^J'j^ J '"'.ec^^ through his assistance. 'I h.s 
a commission on any order they might rece ^ 

.as not disclosed to his employers^^^^^^^^^ ,.^ ^,,i,, ,, 

//.A/, that the transaction >^^s one m recover a comnus- 

manager of the cold storage company, and he 

8ion from the defendants. „,nceded the plaintiff's right to recover, 

/v'^'^'dt: mo^e^lo^h co^^^^ ,l,,„y, taking a hond of 


Riddell, Q.C, for plamtiff. /•• i- ^^sto, 

J. 2. 

TuTTLE V- McDonald. 

//.W. that there is .,o prov.s.on for f. c .to a g ^^^ p^^^.^dings which 

the tariffs in R S^O ' J^ l;^^^;;;!'^;..^: of ius.ce.. 

do not come the .umn ^^^^^^^^^ ^^^ ^^ ^_^^_^^^ ^^^ 

c^T thP aliove united counties, 
The defendant, a justice of the peace foj f °;%„ ,^ due as his 

demanded and received fj-^co^nsS c m in the matter of a search 
own costs and the costs of h.s constai)le ^,<-'J' , stolen goods, and 

^warrant issued under s. 5^9 oi the ^'--^^^^^^^^^ ,, ,, recover a case of 

of a search warrant issued ""^^'-^^^^XlSe offence .as sworn to have 
dynamite, in relation to which aw ^^^^^ ^ ,^, ^f the Criminal 
l^en committed, contrary to the prov.s^" ot ^^.^ ^ ^^^ 

Code, and also of an ^-'-'^'ff^^^'^Z. ,aid sum of $9-50 from the 

The plaintiff now sought to recover the entitled to $3-00 of 

dete,iaa,n. ..ho retained same on he plea that ^^^^^ ^^^^ ^,^^^.^ 

said amount to his own t^- f^^^J ' ^^^'^^ by him to said constable as 

^/^/J and Notes of Cases. 


1897. c. 88, 8 ,4, and he consented, in writing, to have the action tried n, 

h ens.„Ks,tt.nK,of .aid court to I. held at Morrisl.urron "s 1' 

Jast^ At the hearmK the particulars rc., to W proved 1 y R s o ,^1 

A-. /■. l.yU, for plaintiff. C /•. IUa,ifidd, for defendant. 

any ,^rf o7it''' The der"i ''"' '^'. f '''-■"''"' ''^'^ "" "«»^' '" «»'<= $'> ^o or ,0 
the CO, table in lit. r'f "' '°"''' °"'^ j"^"^'' '^^"^'"^ ^^*^^ ^^^ ^m self or 

con..c.ion .ith the issuin, c:^:^^:;^'^ ir^; z^^^:-::::- 

"and ndit" 1;""'^'^ '"^r"!- T^ ' ^^'"'"^ <^^'" »'- distinct. .twe„ 

ot th de«as a felony pnor to the passing of the Criminal Code (see 
tio^. f. ,?' ^^" ^",''"8'^'^^ 'he expenses in connection with prosecu 
t.on. felony were made payable out of county rates l,y „ (Jeo iT c 
36. r h s provmce the costs of the prosecution in cases of felunv wh 
not o^ provided by law. are to'i. paid out of th^ o T^n.nd ^ 

a search Ja Lm for T ," *''° '^■^'''" *" =" information to lead 

« JSv .1" felom- "'i'^""" '» ""■■■= °'™"'i»'<i » ="'"», .l>icb umil 

.he^rr' """""" '""" ■'"Sland, i. was an offence f„rLteof 

Still m force m Canada, that the takint; of the $100 in this nt , l. 
bring defendant withm its nrovisi nc -rk ^'^ "''^' '"'S*'* 

is said to have been n f P'°7',^"'- ^he amount taken for the constable 





Canada Law Journal. 

plaintiff and defendant, ^yj^^^j^;^^^^^^^^^^ 

costs not la^tuily chargeable hefore the a ^^ ^^^ ^^^^^ „( the 

r^achmery of the criminal ^--^lX7o.l to make such bargams, and U 
law that justices of peace should be f^^ ji ;„ a court of law. 

fifteen days. _— 

iprovince of mova Scotia. 


[Feb. 14- 
, Queen v. Quinn. 

Full Court.] ^ ,A_ir^m ^/ convictions- Not 

neft-Conviction of n,ir.r un^J^^ ^^^^ ^ ,,,_,^,,,. . .;.// .. 

necessary to state K.e or ':'[';2 and purposes." 

,ood and effective to alUntents and pup ^,,,,city 

Defendant .as convicted before the ^-^^^fl^'Z^^, sentenced to 

., Hahfax <^^^^^^-ZtTSiti^^^^ H^^'^- '-'^'^-' '^'°°' 
frSry for'oys^f t- P---^^^^^^^^ .„ ,.e grounds that the 

- %;:j is. .- apf -;.--:- f:fihrh^^^ 

of defendant had -V^^^^^ ^J^^ ; It they should be stated m the con- 
victed, and that it wa- not necessary 
viction. ., ,v,„t " the justices before whom any party 

effectual to all intents and purposes _ ^ ^^^ ^.^^^ ,,,u,ls and 

Held, that the intention no doubt ^as t P ^^^^^ ^^ ^^^^^ ^^^ ^^^^ 
averment; in the part-lars mei.^^^^^^^^^^^^ ^^^^^..^ as the equw. 

and effectual to all intents anu pvirpo e ^^^ ^^^^^^^^^^ ^^ ^^^ ,„ 

Lnt of a legislative declaration hat usho ^^ ^^^ .^^^.^^,^ ^^^^^^ ^„ ,,,, 
the conviction to the age of the party, 

-^^^^., that the power of determining the age or apparent age 

Reports and Notes of Cases. 


party before him was given exclusively to the justices, and followinLr ^^v v 
^^tmpson, I Str. 46, that it must be assumed that he exercised it. ' 

Full Court. 1 Wilson v. WmnsoR Foundry Co. [March 14. 

Contract in writing- Receipt of parol evidence to vary or supplement- 
Burden of proof— Concluded agreement. 

Plaintiffs who carried on business in Montreal as co-partners under the 
name of A. R W. 6: Co. brought an action against defendants to recover 
$350 ; price of an engine which defendants had ordered from them in 
writmg, through plaintiff's agent \V. 

The order addressed to plaintiffs, and signed by defendants was in the 
following form : 

" Please furnish ono fifty horse power engine for which we agree to pay 
you $350, dehvered in Halifax. Shipment to be made as soon as possible » 
The mani defence set up to the actio-^ was that at the time defendants 
ordered the engme they supposed and were led to believe that they were 
deahng with a company carrying on business in Toronto under the name of 
A. K. W. A: Co., Ltd., with which they had had previous dealings, and at the had m its possession a crusher belonging to defendantsof 
the value of $780, which it was agreed was to be accepted in payment for 
machinery to be ordered by defendants. The learned trial judge found as 
a fact that the business carried on in Montreal was distinct from that carried 
on in roronto. but that at the time the defendants gave the order in ques- 
ton they did so under the belief that they were contracting with the 
Toronto concern, and that there was everything in the surrounding circum- 
stances to lead to the belief that the businesses carried on in Montreal and 
1 oronto were one and the same, particularly the letter heads of the Toronto 
company which described the Montreal business as one of their branches 
For these reasons the learned trial judge held that plaintiffs were i,ound by 
the l)argain made by their agent W., and on the ground that it was not 
inconsistent with the written agreement to prove that payment was to be 
made in some other way than by cash, received evidence of the a-reement 
relied upon by defendants as to the receipt of the crusher in the possession 
Of the I oronto company in payment for the machine ordered 

ler McDoN.^LD, C.J., Ritcijik, J. concurring. 

Held that the evidence fully supported the finding of the trial judge 
hat the acceptance of the crusher in payment for the engine ordered was a 
term ot the contract between the parties. 

Held, also, that the evidence of the agreement was properly received 
on the grounds stated by the learned trial judge in his judgment 

ler Ueatherbe, J., Meagher, J. concurring. 

Held, that the order delivered by defendants to plaintiffs' agent being 
on Its face a complete agreement, parol evidence was inadmissable to vary 


I? 1 


Canada Law Journal. 

its terms either as to the mode of payment or as to the parties with whom 
it was made. 

//^^th^rthrprJof of the written instrument signed hy defendants 
threw the burden upon them of establishing the.r defence. 

l^jAMhrirthe'absence of evidence of the acceptance by defendants 
Russell, Q.C., contra. * 

province ot fiDanitoba. 


Rogers v. Cl.\rk. 

Killam, C. J.l ROGERS .. ^l..k.. LOct. 9. 

203, 298,301 and 318. 

received by him before the '-^S-'^f ;;;" he pro ecution complained of, 
counsel who advised the commencement of the prosecuto v 

also that the plaintiff had been u. ^^^^^stc^^sll.. It was 
accused of stealing, without shewmg ^^^^ ' J^^^^^^^^^^^f, ^.^en upon the 
further alleged that certam facts were she.n by ev'^e"^^ ^P^^,,,d. 

first charge without information from other sources naa 

without specifying these ^omxc^'- information and the 

The objections rehed on were that ^^ese tacts a j^j^ ^^^ 

advice of counsel and magistrate were ^^^^if^^^--^^ '', Bench 

probable cause which should not under ru^^^^^B o^The Q ^^^^ ^^ ^^^ 

^oSi;tn^:- cLse absol^el. as - -^ -:;:S':J 
may not have been sufficient to warrant belief of gu.U, ana 
the information were not stated. nlnintiff's allegation of the 

Held, I. That a simple traverse of the V^^^^f' 'he statement of 
want of Reasonable and probable cause is sufficient in the statem 


Reports and Notes of Cases. 


defence without alleging the facts constituting reasonaNeand probablecause^ 

3^^, to be struck out. ' '" ''^^ "^^°" ''^>- °"»'^'' ""^- -'^ 

AppWca^ion granted, costs to be costs in the cause to the plaintiff 
r. M. Metcalf, for plaintiff. C. H. Campbell, Q.C., for defeldant. 

province of Britisb Columbia. 


. ?; 



1 " 

Full Court.] 

King v. Boultbee. 

[Sept. 10. 

Practice-Garnisheeproceedings-Order that ,noney reman, in court until 
new action commenced- WItether nullity or not. 

Appeal from order of For IN' Pn t tu 

the same cause of ac ion Thl n H ' j^"'"'"^"'^^'^ f°«hwith in respect to 

' "-"^ o<.iriiisiiing summons so SPt n<; Ho 'ru^ 
c<.mmeMced on iSth November ^ "^''' ^'^"°" ^'^^ 

« .as valid. Kv » .," M«T,v ''h " " "■■■" '"" "I'"""" »e»i™' 

-^ fo, app.„a„:r '^:^:^{i^::r ';2p„,;r,r' '"•"""'■ 



il <« 

Canada Law Journal. 

[Oct. ix. 
, T Dillon v. Sinclair. l 

^"^'"'•'■-' T ■ iwtinn of- Debt- Mechanics Hen. 

^^nll dfhts court— lurisittction oj—uevi 

Small debts J ^^ ^ magistrate o. 

Appeal to the County Cour o Athn om a ^^ ^^ ^^ ,^^ ^^ ^^^^^^^^ ^ 
the small debts court in favour of the p ^.^^ ^,^ 

mechanic's lien under ss. 26 and 27 of ^^e Mec^^^^ ^^^ ^^^^ ^^ ^^^, 

/,./., that an act.on to enfor^^^^^^^^ Appeal allowed. 

^''lt:;rf"appf"^^^^ /-- -d W. p. Gram^^^-^ 

Booft "Reviews. 

^^^I^TT^r^S^^ irrof Tht 

^'' ChargingOrders on SK,cks and Shares, J^.^^ , ^^^on : Sweet & 
Inner Temple, bams er at ^w^ publishers, 1900. 

Maxwell, Ltd. , 3 Chancery l^ane i^a . ^ ^f ^md. He 

^Ir. Cababe has evidently a pract,calndana^t ^^^^^ ^.^^^ ^^^^_ 

which may well be adopted for use here. ^ .^^, ^^^,, ,,,, .feasant 

r^.Z/./«^^f--Boston^US 1^^ ^^^^^^^.^^^^^p^^^^^ 
and continuous regularuy.rhe number ^^^ .^^^ .^ ^^^^ ^,^, y. 

Japan and the new far East from t^^^ ^.^^^^ ^^^ ,he,r meals, 

Italian Anarchism; The old Golf and the - ^^^^^^^ ^^ ,,,ders 

and the Employment ° .^^^ "^^ ^.f f„ ,he way of faction are also well 
'^'^'^^^^ZX^^^ ^"^"r " our readers asthe 
State 'orVrm'oLy ($6 per .nnum) that we know of. 



, ,,, C..v..H..^Then.htofpassengerstoca.y with tha. small 
Common carki-k- Pj,„vrf« v. Cenlrai R. Co. (>-J-.N 4^ 

zr;f.s^ r:s?:ccr ir:'..... . .0, . »» .. ..e 


Canada %aw journal. 


NO. 30. 

Lord Halsbury entered on his ;8th year on the 3rd ult. It is 
seventeen years since he became Lord Chancellor. It is said that 
he is as alert and erect as ever, with apparently no idea of taking 
a rest, which after half a century of hard work might seem to be 
a reasonable proposition. It was thought that he would have 
retired W: , his old friend and confidant Lord Salisbury, but he 
seems gor.d for several years work yet. 

A burglar was recently identified by means of the impression 
of his thumb on wet paint, of which a photograph was taken on 
June 27, immediately after the burglary was discovered, though 
he was not actually caught until August 14 following, when 
he was found attempting to commit another burglary. Enterpris- 
ing detectives will, no doubt, take note of this, and remember to 
look out for finger impressions. 

9 ^* 

' 1^ 






A writer in the Central Law Journal in a recent number 
contributes an interesting article as to the extent, and in what 
cases, damages may be recovered for mental suffering. There 
have been several cases, reported lately on this subject, and the 
trend of the decisions incline to the view that the law affords no 
redress for mental suffering as a basis for an independent action. 
Those interested will find this article at page 202 of the current 
volume of that excellent periodical. The Bombay Law Reporter 
also recently discussed the same subject. 

Dispensaries for the purpose .vin^ meuical advice gratis 

are common, but we believe it is ^ entirely new departure which 
the city of Edinburgh has taken in establishing a dispensary for 
the purpose of enabling poor people to obtain good legal advice 
free of charge. This dispensary is open for two hours one night a 
week, and is carried on by men of standing in the legal profession. 


Canada Law Journal. 

so that the advice is not orly free but rehable l . ^ 

last year the dispensary J sufficient importance 

'""■^r^^ml" Moe"than a tt^^d of the applicant, sough, 
to merit attention. JViore inai Hifficulties between 

advice in matters eoncerning '-'"' '^^^^^"^"^ ^'^'"en.leman 
husbands and «-. and paren. . d ch Mre^^ ^nd^^^, .^^^^^^^^ 

= oT2::r!:^r^;nde^.sinOn.„^^^^^^ 

'^'=".t*drr:ii^rJpr''ac.!.t:::s Ju'; Ictedit^d and approved 
'rr'lv the County Judge, and not left to pettifoggers and mere 
of by say. the County J. U, .^ ^^^ Undertaken by the 

Sb:th dispenr^c'ontroverLl matters being handed over to 

an accredited agent of the poor. 


A. the las. sessions of the Dominion and Ontario Legislatures 
.tatuis were passed on the -•>;-. ofexpertev.den ^ 

We assume that the Domm.on A«. J S-^"' '; f '^ „,„„/,,, 
,„.„, d in -;;fi„P--: SlerLTwTuld not be app.ic 
i-:1rdrar;"«r respecting propertyarld^ 

n ffEdw". "l ;r U =- S r *» Oommion Act, 
Statute, 2 Edw. 7, c^'S. j^ ^j^^ ^ho may be 

but limits the ""-^"^^°;^^;X o ^^^•""^' -b'^-^'°"^ ^"' 
called without leave, and it apples 

other proceedings^ ^.^^^^^ .^ excluding as a 

The wisdom of the English aw ^^ vindicated 

.ule anything but t-t-ony o^^^^^^^ apP ^^^^^^^^ ^^^^^ 

when we contemplate the extraoraina X ^^ 

.esults due to the '^^X\^: ^t: ^^^^l^^^^^^^ fact and to 
witnesses are P-^" ^J^ /^V t,e maxim! quot homines tot 
indulge m opmions the ^^"^^ °J ^ ,^ g^^^^^^^ ^^^^^ ^^ 

^^"""^hire^S /upon o sTp'port a theory favourable to the 
;:::r^:ho^ns hL. a^ the value of his opinion is guaged 

''' ThiseTegislative efforts to remedy what has practically become 
a falcic" scandal may possibly be successful, but we are inclined 

Clients and Counsel. 


to think the German law deals more adequately with the diffi ulty 
In Germany neither party can as of right expert evidence. 
1 he Court first of all determines whether experts should be called 
at all ; and, ,f it decides that they should be called, itself appoints 
them and regulates their number. By this means there seems 
more probability of obtaining a really valuable and impartial 
opm.on. That is what is wanted and not merely a plausible 
theory to support the view of a particular litigant 

On the 24th of September last the Court of Appeal prema- 
turely brought its sittings to a close not because all the cases set 
down to be heard had been disposed of, but because counsel 
engaged to argue several of them were absent elsewhere on circuit 
There are something over 800 practising barristers in Toronto 
and It seems strange that any Court in Toronto should have to 
adjourn Its sittings because counsel could not be found to argue 
cases. The remedy of course is very much in the hands of 
solicitors, wno seem to be content that their clients' cases shall 
thus be indefinitely postponed in order that they may have the 
services of some particular counsel who has really more work to do 
than he can properly attend to. Counsel of eminence will of 
course always command a large amount of business, and no one 
would reasonably grudge them all they can properly do, but we 
think both they and solicitors do themselves and their clients 
injustice when they try to put on one man's shoulders more than 
ne can bear. 

It would be far better for a counsel to raise his fees and confine 
himself to one Court than keep up a constant rush from one end 
of the Province to another in the endeavour, like Sir Boyle Roche's 
bird to be in two places at once. There are some features in the 
English bar system which might be adopted here with advantage 
1 he English rule is that a practising barrister should adopt a 
particular circuit and not go out of it except for a very extra 
large fee. Other leading counsel who do not go circuit confine 
their practice to particular Courts, thus in England each of the 
Courts of the Chancery Division Judges has, we believe, a separate 
bar, who practise in that Court only, unless specially retained for 
extra fees to plead elsewhere. Then again the English practice 

1, • * 

' « 

' i 


Canada Law Journal. 

♦I ' 1 

r^^■ ' rnnn^el refusing cases in which a junior is not also 

'''"'rTc^VTZt. migh. prevent cases being po..- 
on that ground and insisting on cases being proceeded w 

''"u i^te^rnol at Osgoode Hal. that connse, who make 
J'fi^sT: order to be present in C-.when^th.r cases are 

"r^rK'c^'rhfrecrvfdTrrfra-'triann the country 
:rhe re'^J^ed'hln he <^^^^^-^":^-- 


the brief which his opponent had returned ! 

The case oiMcGann v. RaUroai Co..pany,,6 ^^^^l^^^^^ 

„p an old but interesting 'i'^^^" -J°,^X:\\^:i':^^Z 
in setting aside verdicts as 'S^" ' *= ""J^ f„, „„al 
The case in question w^ '^^^^J^^^^:,^, .He^plaintiff 
injuries. At the first t"^' =• _'=' ^^ ^^^ against the 

:^f,ht7:rnrand?:ewM.^as had. On the se^.K. tria, 


double the amounv„$,^^aTh ^^^ ^^^^ ^^^ 

'f'°^S:U' Thi sli^h" eduction did not affect the Cou.t 
plaintiff $5,500- 1 nis m g damages were still excessive 

which still held to the opinion that the damages w ^^^^ ^^.^ 

and again set the verdict aside ^^^^^^^Xl.s hdd that in 
trial Court to the Supreme Court of the btate 

Judges V. Juries. 

66 1 

view of there having been four trials and the various juries agree- 
• ng to the large damages above referred to. the last verdict should 
stand. One of the judges expressing himself as follows : " Where 
the right to a jury trial exists, it is intended that the verdict of the 
jury shall be conclusive upon the facts in the absence of legal 
error or bias, passion, prejudice, or corruption. Verdicts are set 
aside as against the weight of evidence, and new trials are granted 
on the theory that the jury have been influenced by bias, passion 
prejudice, or corruption. While the trial court and the appellate 
division should not hesitate to set aside a verdict as against the 
weight of evidence where the ends of justice appear to require a 
new trial, yet, when it comes to setting aside a third verdict 
rendered in an ordinary action possessing no extraordinary 
features, the Court should hesitate lest it usurp the functions of 
the jury. A sufficient number of trials has now been granted to 
remove any suspicion of the existence of bias, passion, prejudice 
or corruption, and it becomes a mere matter of judgment on ques- 
tions of fact." 

Two of the judges dissented on the ground that two wrongs (in 
this case four) did not make a right. In their opinion if .he 
verdicts were wrong, as being the result of misconception, prejudice 
or partiality, they should not be allowed tostand-the law imposed 
a duty upon the Courts to review verdicts, and this duty should be 
done whensoever and as often as might be necessary in furtherance 
of justice. 

It is difficult to get over such reasoning as this. If an injustice 
was done to the defendants by the first verdict it was equally so 
by the others, and if the first should not stand neither should the 
^r- In the United States the decision arrived at by the Supreme 
Cou. would appear to be in accordance with the authorities 
Each case must of course depend upon its own merits ; but we are 
neither so enamoured of juries in this country nor in a general 
way so doubtful about our judges that we care to favour a rule 
that would make their wisdom and sense of right bow to the 
pertinacity of jurymen. On the othei hand it may safely be said 
that the jury system would have a more limited operation in this 
Dominion were it not for the somewhat autocratic methods of an 
occasional occupant of the Bench or the peculiarity of view which 
IS inherent in human nature, and which sometimes becomes a too 
marked feature in an individual judge. 

r 1 










Canada Law Journal. 

The case of Robinson v. Mann, recently decided in the Supreme 
Court of Canada, vol. 3 ^ , page 484. has ehcted '-- Z';^; "^^^ 
interest in view of the conflicting decisions in severa o. the Courts 
ofthe Dominion, and from the ^-t that it is not m accord -th 
the views of the judges in the likewise recently deeded case of 
^'Xv. CooJer 089«) ^ Q-B- 168. The ;i--;t.on m each cas 
was as to the proper construction of sec. 56 of the Bills "f ^-''^^.^"8'^ 
let 890 of Canada, and of the like section of the hnghsh B.hs of 
F^chanee Act .882 In the Canadian case, one of the questions 
ttt de'ctd^d was : Did the party incur any I'^biHty by.ndor...g 
a note not made payab'. to him but to Molsons Bank and not 
indorsed by the payee. 

The note in question was in form as follows : 

London, Sept. 25th, 1899. 
^'' mee months after date I promise to pay to the order of the 
Molsons Bank at the Molson Bank her. twelve hundred dollars 
for value received. ^^ ^.^^^ g, C^, 

Indorsed on the back was the name " George T. Mann." 
Chief Justice Strong, in delivering the judgment °f the Court 
said • " Next what was the legal effect of this mdorsement ? Sec. 56 
r; be Bms of Exchange Act. .890. provides that, ■where a person 
sicns a bill otherwise than as a drawer or acceptor he thereby 
ncurs the liability of an indorser to a holder in due course and >s 
TbTect to all the provisions of this Act respectmg indorsers. 
Th n^U:n L banl took the note was it not -titl^ to the 
benefit of the respondent's liability as an indorser > Certainh . 
was for by force of the statute the indorsement operated as wha 
ha long be n known in the French Commercial Law as an ' ava 
a fom of liability which is now by the statute adopted ,n 

^^'^The Chief Justice adhered to the law as laid down by hin. in 
helase ofrkAjrA^nencan Plough Company v. Wallace decided 
;„ 1802 ° SCR. 256. The last named case wa^ on ..11 four, 
ITo^'rohL v. Ma.n. Wallace, who indorsed the note, which 
was made by one Clark to the plaintiff company, ^v^s sued in the 
CourT below as maker. On the trial the plaintiff company was 
nonsiited The Supreme Court of New Brunswick on appeal 

Informal Bills and Notts. 


refused a motion to set aside a nonsuit (N.B.R. vol. 30, p 420)- 
the Court bein},' equally divided. 

On appeal to the Supreme Court of Canada, the judgment of 
the Court below was sustained and the appeal dismissed Chief 
Justice Strong, then Mr. Justice Strong, is thus reported : "As the 
law now stands since the Dominion Bills of Exchange Act .890 
It IS clear that under .sec. 56 the respondent would have been liable 
as mdorscr. but only as indorser. It has been frequently said as 
rfcxards the English Act (Bills of Exchange Act. 1882)' that it 
was not intended by it to enact new law, but merely to declare and 
codify the law as it stood when the Act was pas.sed. Sec 56 of the 
EnglLsh Act is identical in words with the same section of uur 
Act. This seems to be conclusive." 

In Robinson v. Mann, Mr. Justice Sedgewick. who was present 
when judgment was delivered by the Chief Justice, failed to stand 
by his obiter dictum in Robinson v. Davis, 27 S.C.R at p 574 in 
which he said : <• Under no circumstances can the payee of a 
promissory note or the drawer of a bill of exchange maintain an 
action arjamst an indorser where the action is founded upon the 
instrument itself." 

lv^ Jenkins v. Coomber, L.R. (,898) 2 Q B. 168. it was held that 
the principles enunciated in Steele v. McKiniay (li^o) s Avu^a\ 
Cases. 754, were not affected by the provisions of the iiills of 
Exchange Act, 1882. The bill sued on \n Jenkins v. Coomber was 
irregular. The plaintiffs drew upon Arthur Coomber for fifty- 
seven pounds and the draft was accepted by him. It was indorsed 
by Alfred Coomber, the defendant, under an agreement to indorse 
for the purpose of guaranteeing payment. 

The judgment of Wills, J., is' explicit and deserves careful 
perusual. The followKig are its salient points : " I do not think 
that the Bills of Exchange Act, 1882. was intended to effect such 
ail important alteration in the law as to override the decision of the 
House of Lords in Steele v. McKinlay, 5 App. Cas., 754. That 
decision .seems to ne to be in force at the present time. It is clear 
that in the present case, when th. .efendant wrote his name upon 
the bill ,t was not complete and regular on the face nf it Nor 
mdeed, did it become so at any ume. Sec. 56 of the Bills of 
Exchange Act, 1882, provides that a person who signs a bill other- 
wise than as drawer or acceptor incurs the liabilities of an indorser 
to a holder in due course. But by s. 29 a holder in due course is 
a holder who has taken a bill complete and regular on the face of 




Canada Law Jountal. 



, a regular -^^/^P^,^ ^.^ '1:^^^'^^^^^^^^^^^ by the plaintifls. to 
dant indorsed .t the b.U had not ^^^^ ^^^ ^^f^„. 

whose mder it wa« payable, f"* ^^^J^^,^ because his name 
dant is liable under . 55. «ub-^ =. *^^ ^^ J^f^'/^^^ge Act certainly 
was on the bacW o tH ;a Jhe f^^^^^ .^ be attached to 

does not give much as .stance .indorsement means an 

the word' mdorsement^ It f^^ J ^^, ,, „„,here says what 
indorsement completed by dei.very . ^^^ ^^^^^ ^^^.^^^ j^^^^ 

constitutes an indorsement. . ■ ; ' ' . j^ ^^e l.ibility of the 
been cited by Mr. A"enborcugh o <^^^^^^^^^^^^^ t ^^^ ^ ^^^^^^^^ 
defendant as indorser are a case ^^ ^^j, .^e bill was 

and perfect instrument. ""^' " ^^^ ^^^i, [, had received the 
not a complete and negotiable mstrument unt.Ut ^^^^^^^ ^^_^^^ 

indorsement of the drawers. . . ■ * " . j^ ^^s laid 

,.,e the Act of ^^^^^^^^^^^ ^ "^^Z^oi indemnity on 
down in St^e/e v. McKtnlay, and in j^^j by the law 

which the plaintiff relies .s one ^^ *=^ '^:;' '""^^nt between the 
n^erchant, but which arises solely from an agreeme 

parties. It is. however, here ^«>'*=^. "/^^jj '„\ ^'^./ange That, 
'ability against the defendant "P^/f ^^^^^^^^^^^ ,^1 n'ot do. If 
as Lord Watson points out m ;^'^f ^ f jl^^ J;,,,,, of surety- 
the agreement exists at all; 't rn-^J^ ^ ^^^ requirements of the 
ship, and for that purpose it must sat.sty in 4 

Statute of Frauds." explicit : "I am of the 

Thejudgmentof Kennedy.]... no les««-P' ^,^, ^^e 

same opinion, and for the sanrie --«-/;;; Cas. 754. have 

doctrines laid down in -^f J ^'f ;^f;''^' ^ ^.gg^' m the edition 

been varied by the Bills of ^-^^^f .^^^^^rS.../. v. McK..iay 
ofthat Act by Mr. Chalmers he expressl^^^^^^^ ^^^^ ^^^ ^^^ ^^.^ 

as an illustration to s. 56. ^''^""^^^ '"f ^^ered. This document 

provisions of the Statute of Frauds ^^^^^^ ^^ ^ ^^ 

Sec. 56 of the Canadian Code IS a" ex ^^^ ^^^ 

of the English Code. -- /"'^.'^'^^"Pl t\S t all the provisions 
following additional words: ad - sub ect ^^^^ ^^^^ ^^^^, .„ 

of this Act respecting indorsers. 

Informal /it/is and Nott! 


order that a person who signs a hill as a warrantor, or aval as he 
was called in the Civil Code of Quebec, should be entitled to notice 
of dishonour or protest. 

The indorsement called an aval, signifying "underwriting," was 
adopted in the Quebec Code from the Civil Code of France. The 
term was not exclusively applied to indorsement. The aval might 
be made bj- one who gave his name as a guarantor for the acceptor 
by placing his name under that of the acceptor, and likewise as a 
guarantor for the drawer by placing his name under that of the 
drawer. If the aval were made for an indorser according to the 
Civil Code of France it was not necessary in order to hold him 
liable for the default of the one for whom he had become the 
guarantor to give him notice of dishonour. Now by the Canadian 
Code one who indorses pour aval is entitled to notice of dishonour 
the same as any other indorser. The liability of .such an indorser 
is clearly stated by Lord Blackburn in St.ele v. McKitilay, L.K. 5 
App. Cas., at p. 772, in these words "An aval for the honour of 
the acceptor, even if on the bill, is not effectual in English law, as 
appears by Jackson v. Hudson, 2 Camp., at p. 448. That case can- 
not now be questioned after the lapse of so many years, even if it 
could have been successfully impugned at the time, which I do not 
think it could. But the indorsement by a stranger to the bill on it 
to one who is about to take is efficacious in Knglish law, and has 
the same effect as an aval. The effect according to English law, 
of such an indorsement, is recognized by Lord Holt in Uiil v. Lewis, 
I Salk., at p. 133, and again in Penny v. Innes, i C. M. & R. 439 ; 
such an indorsement creates no obligation to those who previously 
were parties to the bill ; it is solely for the benefit of those who 
take subsequently." 

It is clear, if one indorse a bill or note for the purpose of 
becoming a guarantor for its payment on the part of any other 
person to it, a liability exists ; but it is a liability or contract of 
suretyship, which must be specially declared on and otherwise 
meet the requirements of the Statute of Frauds. 

These observations are presented with the utmost diffidence, 
considering the ability and eminence of the judges whose decision 
is brought under review. But free and open discussion of legal 
principles, apart from all considerations save a desire to reach just 
conclusions, is of course the surest way of attaining that fixity of 



Canada Law Journal. 


L'ili^i^^ai.a, .ystem, which is .he be, guaran.e. of a 
people's liberty under a free go.ernmen.. ^^^ ^^ ^^^^^_^ 

St. Jolin. N.I!. 



an application to remove the '^'P"""*'"' ,''»;'", they were not 

..Va«line"fron, the l^^^'^^ • "^ '^: J-^^.X^l^ *« °- 
entitled to the e...clus,ve use of the »°'d PP ^^^ 

Chesebrongh through whom *= fspo ent. cla,^^^^, ^^^ ^^^ 

inventor of the process for ^'^'"R f ' '| j „ ,^j ,„J termed 
had patented the process^n * "^^ ' ,^ t'; '„. f„, ,he process 
the product "Vaselme «» Pa.=n^ ^_^^ ^,^^ p^^,^„. 

in England, and it was "sea oy ' f respondents was 

called by various "'"'^^ ''"/''", ";/°;,*d,vas registered by 
„ways called •• V-llne^ and m 8 e „ „d^^ ^^^ ^^g^^^^_ ^^_ _^ 

,hem as a trac^ marl. The a >p ^^.^^. ^ ^ , _^^^_^^^^ .,/„,„,/„.„.- 
:^S':r:t:srs"' C\ D. .34, w- ^ >va, h^ld that a^^^^^^^^^ 

gi^en to a -"'^ '"^ ^aVer r e^; lion of .^e patent anyone 
a trade mark, and that after tne e V ^^^ ,^^ 

'' ^' 'r:V t'h°e"co:« oTTppealtwfmal and Stirling, L.JJ.) 
S; L^L'that^: the p"-.;-becausehere^ there was 

no patent, and the respondents "•="=.";='/' ^^j ., Vaseline " ; 

rniifri^tr;:.!^-— ^^ 

L.J. however dissented. 

English Cases. 





In Bdlerby v. Roxvland & Af.s.S. Co. (,902) ■> Ch i. the 
Court of Appeal (Collins, M.R., Stirling and Cozens-Hardy t H 

wich. J (193,) 2 Ch. 265, (noted ante vol. ^7 p. 773) The action 
.t rnay be remembered was brought to rectii'.L'^elLeTof h re 
holders of a hm.ted company, so as in effect to cance' the surrender 

d c ^fthe "" 7''^'^ ''' ^^^" -^^^ ^° ^' - company an to 

comnln ''''' °" ^^"^'^ ^"'-^ -^^° '^^d been paid, and the 

o7ZlTT :"'''''''"'' '''' ^''■^^^°- toaccepta urr n 

some "f 1 . r""°" '"'''^'■" °f ^'^^ d'^^ctors surrendered 

some of the shares held by them, with a vie^v of makin. .ood o 

he company a loss which had been incurred. The coir v had 

-ce become prosperous and the directors desired tXTld 

^urrender wa. illesal, yet refused to rectify the re<n\tcr on the 
ground that the justice of the case did not require ^TLcou 

rtt ';/ the " r ^ "'""'' ^° °'-'^'- ' '-t.-ficatK. of the 
urrenderers had never ceased to be the holders of the shares It 
may be noted that they waived all claim to past dividend;! 

''''v!!Zr:i::z: s;:~';r'= ™— -soucor ok w....- 
CO...E. ^::^-- --:. ^;r-::^^-— ;;- ^r- 

In re London & Northern Bank (190.) 2 Ch 7^ thi ,.-, 

z^^:zr'T' ^" ^^^^^^ ^" eiLnitL^of^;:- ^ :.: 

89 s ' c ZtT ""'^^ :^^ ^"-"P-- Act (25 & 26 Vict, 
ia-s sol ci or w,f ; "■ '"I " ''^^ '^^'^ ^^'^"^'^^ ^^^ -"ended by 

a lo so ictr tTh^^ T """""' ^^ ^ ^^'^"'^"^^ ^^ ^^o was 
l.-tiga b and for h '"''" T^' "'"" ^"^^ liquidator was in 
-a^r: 1, ''''.^"■'P'"^^ °f ^^•h-'^h litigation the^n 
at alt", .^'"'■\"'d^^-«bj-tedto the solicitor being present 
tern f . ^ ^" '"'"'^'"^' ^'^••'^- -«^"d'"g. except on the 

exl- ^^^^^^^^ "" r .^'T'^^^ ^^^ ■■"^--' - ^^-^"" o^ 

exammafon. Hyrne, J. held that the examination was of a 


w %\ 

Canada Law Journal^ 


^^^^^^^^^^^^^^^ only attend o^ 

present thereat, and that ^^e cle ^^^^^.^^_ 

giving the required "f -^^^"f:!" 'A JJ ) "pheld his decision. 
M.R. and Stirling and Cozens-Hardy, L.J J.} P 

.,., Profits earned before wind- 
CO«P* --^"-^^J^'^s.-rpLs assets'- PRBkere.ce ano 



winding up proceeding ^\^^^^Jt^J,, £.o, paid in full 
consisted of ordinary and P-^^ "^^ ^ cumulative preferential 
The preference shares ^^J^" ^^^^^^^^^ the directors to 

dividend. The articles of ^^^°^'"''"" ^^ree years the business 
set aside profits for a reserve ^--^-J^; capital was lost. In the 
,vas carried on at a loss, -^ ^^;f^^ ^^^J^ but no divid nd was 
next year a profit of £iP75 jy^^ company 

declared, or any ^^PP-P^^^'^^^^t ^nl P the debts were all 
went into liquidation, and "P°";;j;,^"rhe shareholders. The 

paid, and ^7 P- ^^^ ,7, ;\"7emalned in the hands of the 
above-mentioned sum of i,i,075 ^^ distributed. 

liquidators, and the ^^f '"" ;7' ,'; lel-ed no dividend for the 
The preference shareholders ^ho had rece ^^^ ^^^ ^^^j^^^,_ 

three years the business -^"/-^ .^^ ,^,:;d among them. The 
ing year, claimed that it ^^on\^^^XZ claimed that it should be 
ordinary shareholders on ^ "J^ejjia ^^^ ^^^^.^^^^ ^^ „^,, 

divided rateably among al the ^^areho ^^.^^^ 

effect to the latter contention, and ^h Cour PP ^ ^_^ ^^^^^ 

M. R.,and Stirling and Co-n-Hard> L- J ) ^_^^^^ ^^ .. ^,^ 
The articles provided t^afn the event ^^^ ^^^ ^^^^^_ 

surplus assets "were to be d.ndedequlybe^ ^^^^ ^^ 

holders, and it was ^^ J J^^^^ ^^^.y, remaining after payment 

regarded as '• surplus as.ets, ^" "^°" J 
ofoutsideclaimscoming under that head. 




Vuaer v-^-^-^^-^ alllgerequi'abie "charge on property 
:::;":rS^:::^tr^Sany in Brazil. The action was 

English Cases. 


brought against the company, and also against the trustees of a 
debenture deed made by the company, such trustees being resident 
m Holland— and also a receiver appointed under the deed who 
was resident in England. The Dutch trustees moved to set aside 
the service of the writ of summons on them but Byrne J held 
that they were proper and necessary parties to the action against 
the other defendants and he therefore refused the motion-and on 
the application of the plaintiff a receiver was appointed in the 

PRINCIPAL AND AOENT-FRAtn op agent - Bona-p.dh purchaser prom 

KsTpHr""" --"-•^--" CU.SK-AC.H.X APPARH.X OW.VHK - 

Riwmer v. Webster (,902) 2 Ch. 163. was a contest between 
two innocent persons as to which should bear a loss occasioned bv 
the fraud of another. The plaintiff was a trustee, and as such 
held a mortgage bond which he plac the hands of a broker 

for sale, and, induced by false reprc. )ns of the broker he 

executed in his favour twr deeds of tra ..,cv of the mortgage bond 
Ml two portions of ^,-1,500 and ;^5oo respectively, which sums in 
the transfers he acknowledged to have received from the transferee 
The broker then borrowed £ i,030 from the defendant and executed 
a formal sub-mortgage of the bond to him, producing the transfers 
as proof of title. The broker misappropriated the money and 
absconded. The plaintiff claimed a re-transfer of the bond free 
from defendant's mortgage, but Farwell, J , held that the plaintiff 
having clothed the broker with the apparent ownership of the 
bond and acknowledged the receipt from him of the purchase 
money, was estopped from disputing the title of the defendant. 



In re Carroll, Brice v. Carroll {igo2) 2 Ch. 175, is an instance of 
the summary jurisdiction exercised by the court over solic'tors 
This was an administration action and in the taking of the accounts 
It appeared that the executor had lent the trust funds to his 
solicitor without security ; the plaintiff thereupon applied upon 
notice of motion entitled in the action and also "in the matter of" 
the solicitor for an order to pay the amount so lent to him into 
court, and Farwell, J. made the order as asked. 



-: 'is 

■ 4 



1' 'a 

I '' 

Canada Law Journal^ 

.,/.;..- .:/ ■"'•'-'"".^•X'^.iit'n injunction to ,«.,ain .i,= 
l„„u„,u by a raun,CM>al '^^'^^ ^ ™";; b„ach of a bylaw regukt- 
a,re„aan., fj^n, --^ J-" ^f.o obtain .. .eCata.ion ,ha. ..e 
ing the w,dtl> of '■^''^^'l „ p„,i clo«n buildings already 

plaintiffs were entitlca to remove V j j .^^ action 

Lctcd in breach of .be^>;^- j^! ^J^ ^^ „, ,,,,„ i„ ,be 
holding that the pU nfff, ~^ "^ 7/ „„ „, ..Hch it wa. 

the Attorney-General. 

"" "r;"S:;«.o.» "™ o, co.n,T,o.. 

summary application '<. "<=«""■•- "^ "J^^^ °, ^ daughter for 
will. The testator had dc ,scd h'» "' "^' .„ „,, ,ue should 
life, and after her death to '^ ^"^^^^^t.^,,. oHris taking 
have no children then to one --»" -/,,„, ,„ ,553, Hi. 
the testator's name only. Ihe testa pf, ..ninth year, 

Jaught^- was still living and ">"'f • "' '" .^ "hout'ever having 
and had no issue. Newsome d>ed n ^S55 » ^^^ ^__^ ^^^^^^^ 

taken the '-^"''^ ."'T; ..f.L"" cLary for the purpose of 
months before he died. It M"™= " ' , ^^ ,„„k any 

administering his estate to dete mme hethc^r^^ ^^^^^^^ ^^^ ^^^_ 

interest under the J°>"' {■ f„,„a„ce had not been 

dition were precedent <» f "sequen^ us perl ^^^^ _ _^^^^ 

,e„dered '-."f ;;, >; *Ll:i = to him" c,u,d not take effect, 
having complied with it, tne uc 

01, rdfach of covenant to 
VENDOR •HO '>U''C"*««.7^^trBNCBorr.;^^^^^^ 

K...K-R.CH.PT.O.K.NT E - ^^^ ^^ .^^ 

/„ r. ^/^/^^^' '^"^ ^^'-'^ ^'902) 2 Ch. - 4. ^^ ^^^ ^^,^ 

under the Vendors and ^^-^^^^ ^^ J^^b^a covenant to 
was a leasehold house the 1«^^^^^? ^^ November. 

r^.h\^rm;ent:Lryrv:;"" - - --- ^"•" 

English Cases. 


notice by a municipal body reauiiiii" h.m f^ ,i , ~~ ~ 

under the lease haH h«„„ r °' '"^ covenants 

vendor ^JZ.te bo:;:*™;*:" '° "^ "'■ '•■°^™^"' ""= 
that a receint for ih. '-." '^ "P'='"'= i ="<! !■= »lso leld 


■n .h,s case, « the contrary appeared." ' ^ "' "'""• »' 

4.) s. 6.-IR s.a c. ,?;: . ■;; , " " """■"" •*" '^s' >« * « v.ct. c. 

Godwin v. >>c/ru'ef>/>f<: l'Ino^. <^-u ^ • 
™lo that though a. TJ: ZX T nS 'c r "T'"";" "^ "- 
a„en„, (,833) 2 Moo. & s. "6,\IL "kR L T T^'' "' 
person possesses a house having .hf^c'uattetiT" "^ "'"^ 
. certain hgh.s. and ,.so posses^ ,„e ad7o i I , ^' rr'T.r',,'" 
house to another person, although the li. hts b? „ew h ' 

r.oT::rirr:r.h? ^-^ -- - ::iotr;,r: 

™.c does no, entirirnt^rrir .'.r^l^tL''" "d"' 

^/.;«.«.^/..,« V. /^oss, 38 Ch. D 2QC In L ^'^term.ned in 

of houses was erected on the land o-" OvhV''"'"c "'"^ " ^^'''^ 
agreement made in ,88^ vh.Vh , ^ ^^ °"' ^^^c under an 

.a ' : Si 
fl * 1 


Canada Law /ournal. 


! .1 

H I 


by Oxby to Sage. The plamUft were hag ^^ ^^^ ^^.^.^_ 

the houses, and ^^e defendan h.s ucc -or ^,^,,f,,dants 

ing plot of land. The p amt.ffs t ^^^ ^.^^^ ^^ 

fro^: buildin. on the a .d o a. t^^ ^^ ^^^^ ^^^^^ 
thehousesasit exited at the dateot g ^^^^ ^^^ ^ ^^ 

case of derogating from the grant. 


^W.r..« V. ZJ.^X-/.j (.-Qoa) C'^. 93^;^^^ by the Court of con- 
aescription of ^J^gatee .n a . b^^^^ ^^^^^ ^ ,^,.,, 

struction. In th>s case the ^t^t ^^^^^.^,^ ^^^^^ f^e 

trust for his son's " wife Let.t.a .t s ^^^ ^^^^^^^^ ^^^^ 

L died in New '/-^-^'^triedLH^ Lilian C^ 
thence stating that he had - "^^ ^^,^ ,^ ..^ cohabited w>th her 
turned out after h>s death ^ha^ tho ^^^^ ^^^.,,, 

as his wife, they were -^^^^^^^^^ was entitled to the bequest . 
theless, that Letit.a L'Uan Cumberla ^^ ^^^^^^ .^ ^^^^ j^.^ 

and that the words " my son w fe m g ^^^ ^^^^^^ ^^^.^ 


— ;^th;widowo.thetestator.sso. ^^_^^^ 


, ffunloke (1902) I Ch.94i,decides(Eady, 
/„ r. //««/^^- ^^^""^''■^ \^"tn a tenant for life and remamder- 
J.) the short point that as between a ten ^^^^.^^^ .^ ^ ^^^^^ 

Lin a fine paid ^7-;;;;;, ," e aU^^ 


..COME FOR MAINTENANCE _ ^ ^^ ^^^^^^^^ , 

a question upon the construction o a -U as ^^_^ ^^^^^^^ 
one was vesica 

English Cases. 


twenty-one. The will directed the income to be applied for the 
maintenance of all the legatees inJiscriminately, and Eady, J. 
therefore held that the share of the deceased was not vested though 
semble, it would have been vested, if the direction had been to 
apply the income of the respective shares of each legatee for his 
or her maintenance, 

RESTRAINT OF TR*OE-Covenant-" Interested" in similar bisiness- 

Gop/itr Diamond Co. v. Wood (1902) i Ch. 950, was an action to 
restrain the defendant from committing a breach of covenant 
whereby he bound himself not to be interested directly or indirectly 
in a similar business to that of the plaintiffs within twenty miles 
of Regent Street. The alleged breach consisted in the defendant 
having accepted employment as a servant at a fixed salary in a 
similar business. Eady. J. held that this was not being " interested " 
within the meaning of the covenant, and he refused an injunction. 

FRAUDULERT CORVEYARCE-Assignment for benefit of certain credi- 
TORS— 13 Eliz. c. 5-(R.S.0. c. 334, s. 4). 

Maskelyncv. Smith (1902) 2 K.B. 158, was an appeal by a 
claimant in interpleader proceedings from the deputy judge of a 
County Court. The defendant Smith had made an assignment 
for the benefit of such of his creditors as executed the schedule 
thereto. The plaintiffs were execution creditors who had not 
executed the schedule, and they seized under their execution goods 
assigned which were claimed by the assignee. The question was 
whether the deed was void as against the execution creditor under 
13 Eliz. c. 5 (R.S.O. c. 334). The deputy judge held that it was, 
owing to the plaintifiTs being omitted from the schedule, but the 
Divisional Court (Lord Alverstone, C.J., and Darling and Channell, 
].].) overruled his decision and held that the assignment was not 
void under the statute of Elizabeth. 

ASSISRMERT OF CHOSE IR ACTIOR-- Absolute assign.ment (not pur 


Instrlment passing whole right Of AssiuNOR-juDiCATLk.. Aci, ,573 
(36 & 37 Vict. c. 66) s. 2. sub-s. 6 (R.S.O. t . 51 s. 58, slb-s. 5). 

In Hughes v. Pump House Hotel Co. (1902) 2 K.B. 190, the 
defendants appealed from the decision of Wright, J , on a prelimi- 
nary point of law as to the plaintifiTs' right to sue in their own 

40— C.L.J. — 'oa. 

1 ^' 

i' ' 


i.I . t 




" ,* 



■ ^•11 

^j^ Canada Laiv Journal^ 

contractors for certain building 7''<; "^f ' ""' ,, ^" ared that 
clair.=d to recover from the defcndan's ^2 ^^ ;^ .tntTthe plain- 
in order to «cure **"'-"'/"<'f'ft::,^:d\o "h bani an 
,ilTs by an instrument in """"S. ^fj»'„^";j,Tn question and 

moneys One or to become due "f " *;;°;;;t,eof ,n the plain- 
empowered the bank to sue for he recover, ^^ ^^^ ^^^ 

tiffs' nan,e and to «- f ='";^ , „7J .h,, assi-nmen, had been 
moneys assigned. Notice in writ I. ,,„„ thcreiorc was 

given by the bank to the defendants. ^^I-^ 1"=f ° „,„ ,„ be 
Whether this was an absolute ""■S™^"' " °"^ it w a to' be by 
by way of Charge only. ^^^^Z^^^^ P"-^ 
way of charge only, and held ^"/' '" ^ J ,,,..._ and Cozens- 
with the action, but the Court of ^PP^^^^^^^^^^^^^^^ effect of 

Hardy. L.JJ.) reversed his ^--n ^^^^^^^^^^^ ,, ,,e 

the instrument was to P^J^j^^^f^ty ay of security it was " an 
assignors payable unaer the ^°"\'^^'=\7J^^ „f .^^rge only " 

absolute assignment not purportmg to be by .ay ot g 

within the meaning of the Jud.cature Act, s. 25, ^ 

Act, s. 58, nib-s. 5). 


CRIMINAL LAW-SEAMAN-O...NJ^ DBS- .8ch (57 & 58 V.ct. c. 

-Wilful disobedience- Mf-RCHANT an.r 

6o)s.376,s.B-s.. .^j,B3,g Upon a CHse stated by 

'"T"""dCh\nn:rTjhdd" hat under t.e Merchants Ship- 
Darhng, and Channell, J JO n ^^^_^ ^ ^ ^^^^^„ 

ping Act, 1894 (57 & '^.^X^.TJi^' -^--^-"^ -"^-^"^ ^' ^^^ 
™ay be conv.cted of w.lfuUy d.obey.n .^.^bedience amounts to 

r rnc:"f 1S:^r^^^ without .ave under clauses (.) 

or (*) of sub-s. I. 

„„»T,0.-S„.... av »„irr .,.ns„s,...»r w„.™.w.r-No ..,..» 

" """ .,„ , ,00-) . K.B. 260, although a bankruptcy case, is 
Re a Debtor x,\<^-) - " , orinriole of practice of 

aeserving of notice ^"^^ '^^^^ris uHvas wLthe'r a notice 
general application^ J^^ ^"^^^ P" ^e , and this depended on 
of bankruptcy had been '"^'fU ^ .^ , ^uion to do so, 
whether the creditor ^--g the notice was^ in P .^ ^^^ 

before obtaining a return to a fi. fa. whicn 

linglish Cases. 


t^l^ and under which ,oods had been sei.ed. but 
oe>n„ claimed by the debtor's wife and her trustees were subse 
quently abandoned ; on the abandonment .f the seizure not.ce" 
bankruptcy was served on the debtor, no return to the fi-frh"v ne 
been made by the sheriff 'V\. n . c ^ "avmg 

Romer «nH \.7 r tt- . ^°"''' of Appeal (Williams, 

ll *■ ^"''' '^"^ Judgment creditor causes a fi-fa to be 

executed by seizure of the debtor's j^oods he cannot have aw it of 
cap..s, or another fi-fa to another county till the fi fa u der 
:tn though ::::: 'rt ^--^P-^ --uted andrl": 
so when fh t ] " """^^ "'^ ^'"' ^'^"^^ ■' y-' this is no 

Lh ^ ^" /'^^"^°"'"^"t t^'l^e-s place in consequence of the 

creditor had the nght to ^nve the bankruptcy notice. 

PR0B*TE-Ex^:c■uTOR.s AtcoRoiN,; to tmk tfnor-Tri stp^« n 

Anv.xcKM..:.vr and ok chu^rT.. '"'"'"'•"'"'' ^""'' 

/«///Y^^.^-rc/-/^//--5^(i902) P. ,88. a testator by his will 

tr^^t^'^T' '''.''' '^'' ^"^ testamentary e^penL^by 
nlm TtTl ''"''^'"^^t" "^"^^d." :■ , executors were in fact 

wsh 'a' to tL d ^°""*'"^' ^" ^^^^"^'■°" °^ ^'^^ ^-"-°" 
rh IH .J education and advancement of certain of his 


^avethem certain bequests "for their services." and dispos d of 

rtt'Iefrer: '^:;T"'^ ^T^'^" J^""^' "•^- h^'^'h- the 
probate °" '"^""^'"^ ^° ^^^ ^^"^ " ^^^ -titled to 


costf The nl.t?f ^'^'"'^ '' '°^' '^^'^ °"'>' ^''^^ ^ ^"^^tion of 
!; . ? ^^ propounded a will for probate, the defendant 

t"at:meToft"ff ^" V ''''''-' ''^'^ -ea, and in he 

uTZdLto/^^ P'^^'^^' undue execution, 

unsoundness of mind and memory, and want of knowledge and 

approva by the testator, and she counter-claimed probate of a It appeared that the principal beneficiafy named Jn 

the will propounded by the plaintiff had taken instrucLn Tor th 








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Canada Law Journal. 

■I {■ 


;~;;';;7^^icated them to the solicitor who dr^w it up and 
that the solicitor did not himsdf see the testator The u.U wa^ 
upheld but the circumstances under which ^V^s d-n we^ he.d 
by Jeune. P.PD.. to be such as to inv.te .nqu.ry. and to just.fy 
Court in refusing to award costs agamst the defendant. 


In the goods of Peverett (.902) P. 205. a holograph documen 
in me gwu^ j instrument was iniormal, it 

,„„ »i<nesse., both of f 7 "=" ^ ^'.-e • -as noat.csta.ion 

clause. Jeune, ^, ^resumed that the document 

rrr: r;::reVLT:.ranraa....a.c„ W.H ... »m 
annexed was according!: granted. 


]77M.M:Ura,.fy,. V. H'.-./"V'- ('903) ^ «. ..o .he 

/« re maui ' '' . , r^ ^72 (noted ante vol 3/. P- 

'^Th^f: f; oTe ; '^:^^o^ -^ .^e Co„. of Appea,. 

a binding .,us. had directed a P-''°;;f*Xy personal es.a.e, 

the payment of debts. Kekewicn, j , affected by the 

payable rateably out of the port-n of the -.due aff ct > 

trust, and the portion not so ^«ff |^;^,J'l jj^^Lwever was 
(Collins, M.R.. and Cozens-Kardy and Stirhngl^^^^^ ^^ 

payable first out of that P^^^ ^^^^e les. ^^^^^^^ 

trust, and the deficiency must be borne rateaoiy oy 
by the trust, and the real estate. 

English Cases. 




the judgment of Joyce, J.. (1801) 2 Ch ,,« ^„J , " ^'i- 234, 
n r?fi^ ..,0 jc ''-^> J> (.'oo') 2 cn. 338 (noted ante vo . \7 
p. 776) was affirmed by the Court of Appeal (Collins M R and 
Stirling and Cozens-Hardv T 1 1 ^ tu K^^nnus, .-vi.k., and 

t. ^f M t \ "^'^*^>- ^JJ) The case arises on the construc- 
^ . of a wil whereby the testator gave his residuary estate to Sis 

tena^n^e : ^ Z' "• '" ''^^^'^ ^° ^PP'>' "^« '--^ in ma 

enance and education of his children until the youngest who 

daZht. 'Tr'" being a son. should attain 3' o 'bnl ^ 

H. daughters atS^ ::: ^ ^L ! in^-^ J^^r^anl; t^^ 
wstator directed that if .„y of his children shoudd;,eav n„ 

lauailv ;•"'"' ''°"" ''''' ""'' °' h- '^^"-ed parent's shTe 
equally as tenants in common. The question was whethe the 

whether if fnoifl- • ^ '^ attaining 21, or marrying, or 

J held that ^; :T '"' °' *'"■■ ^° '^^"■"S -t any time Jo.xe, 
Court of A ? ''' °" '^''' '"^ ^>''"g ^* ^"y time, and the 

Court of Appeal agreed with that vic^v, and consequently that the 
hildren only took vested indefeasible interests if and when Lev 

"St hatpe:;"^"^ '-'-' •■-- - — -^- -h^-;; 

''Tlr Mirsc!*;.?rn^^^^^^^^^ '-^'"-'^ -« B.I.O..O-UTE.T 

■ 1.0EKIlimO«_U»D.«01<OUND CIIV.RT-C011D1T10N OF SALS 

sale on the specfic statement by the vendors that it was suitable 
o bu„d,ng purposes, whereas in fact it was mater Jly rfited 

prope«r„:r '° '^ r'""'" °'^" -""g^und culvL" the 
property „„l<,,o„„ ,„ ,h^ „^„j^^^ ^ ^^_^_j._ 

that the property being open for inspection, the purchaser shall 

cond!r„ .h° 7 ".'"■ •■"" ''"""'^''S'^ "' »■= actuar,ualitTe and 
thetrshaTnl. 71'"" '*"" "' P'-ed in the particulars 

before fh. ,1 , , ™° purchaser inspected the property 

contract had been entered into, and in the opinion of the Court no 



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I* : ' 



Canada Law Journal. 

reasonable inspection would have enabled the purchas.r to^e 
he culvert t was in evidence that it would cost C,oo to dca 
wfthh culvert in such a way as to n.ake the land -'tab « 
Tu h a building as was contemplated by both Jndcr these 
:t:!;:nc;:^he court or ApP-KCoHins NrR^^and t,j^^ and 
Cozens-Hardy. L.J J) affirming. J held '']^ '^^^^:^^^ 
tion of sale above referred to did not apply as the d feet wa. 
Itent. and that the vendors had failed to make a ,ood t.tle. 


To the hditor Canada Law Jouknal •. 

Your editorial in the September number of the JouuNA. on 
Mr fust ce Meagher's connection with the Sydney mc.dent .s unjust 
tl ;ha iudee Newspaper reporters in their desire to make copy 
;:ai'lret.,led^eU i" t- ^rst instance a.d comm n 
on the judge's conduct have been based on the fact, set 

''"onThrsecond day of a special term of the Court at Sydney, 
with :; e than sixty-five cases for trial on the ^-ket an adjourn- 

s.dered that he steps v attempted to make a way 

r:,:hircrwd]rthf3:t an iud^ ordered the crowd 

and Lide not because his exit was blocked, bur 
Srfons h^ fng business in the Court were detained. Unfortu- 
Ta te^y the members of the Board of Trade who were nearest the 
doo did not know the sheriff, nor did they recogn.ze the judge^ 
and the judge was hissed after he had made Ms way through. He 



had the courage t., characterise the conduct ..f the men who h.^ 
h.m as WHS clcserv.!. a.ul there is a dispute about the he 

In the afternoon the matter was discussed bv the Hoard of 
I ra.le. A few ..f the members thou^'ht that the whole Board had 
bec-n msulted. and made inflammatorv speeches Verv nr n of 
the members of the H.ard of Trade' conceived thl h d 

gr.evance against the jud,e.a„d one of the MaliUx de,c^^ : : 
s ax ery respectable man. spoke to the judf,.e as he was descencZ" 
o he .round floor of the court house f.-.'n the court rmt at 
afternoon Unfortunately this member of the Hoard in speaki, . 

regretted. The jud-e at the time was <'oinP dow,- the s-im,. ., • 
among solicitors, litigants and witne^es w^ eel ::.:;: 
court house, and he pointed out to this member that he 'hold 
■nga term of the Court, and that no person ought to u e su h 

Te s:i^ ''"^^ '" '' ^"^'^^ r ''' ^°"^^ ^°"-- The :rb^^ 

once said . I wdl go out on the street and rene-it it " an 1 f n 

«;:•„;; r,r-' '" "r' '"^"i'- ™= ""^^ -^^^ ^-^"^ 

to arrcl ll„, i;u.Klc,nan. As soon a, the full cliict of tl.L- 
c.prc,s„o,,H „,„! ,0 the judac became ,p„„em to the me mbcr „ 

diseharsed. No eomment was made upon the juclffe's conduct 
The judae was placed in this position, that he Lsl, Id „" e 

h r:::,.: ra: .h' :"" '"''''•""'■ """"''• "■'---• -« "«"■ - 

and h,s conduct was a disgrace to the citv he came f-nntZte 
had to protect himself. '"e i..,m. an,, l,e 

Ottawa Should ta.e notice of t^Jm^aTr and p'r ^eoT hT'::;; 
rence of any such unseemly, and so far as the arrest was ioncirne; 


• i«I«\1RH-'> 

Canada Law Journal. 


|i > 



mecal conduct in the future." It is scarcely necessary to say that 

: thin what ma^airly be called .he P'f"* f,^*':'/,;-'' *' ^ 
a contempt, and the Judge "-^V -™-"f^ T™e ,ha. "u P°-' « 

°' 'Had your article appeared in any other th,n a legal journal. I 
would noCrite this no'te. as the public know how prone repor ers 

Tre to c°lo"^ •"^'^«"*^ '° '""*'' 'P"^^ "^ paragraphs but n a 
Salournal the members of the profession expect a fa,r discus^ 
lifn if their conduct if any comment upon .t .s considered 
necessary. ^^ Officer of the Court. 


rWe have pleasure in publishing the above ^f "• f"'^ s*^^" ^^ 

What appearea i j we having, as we conceived, 

without any des„e to .nju '^J^'J^Zj'^^^^i 'o '"'^ 
a ^"<y '" •''^P-r^r^ltt S^^ «'''-^. -d we did not 
St.": slhrght. If by any mistake or incorrectness 

:rLt I hav'e done Judge ^'^^'•^"^''^^^X »"> ^ 


Reports and Notes of Cases. 

68 1 



Dominion of Canada. 



[May 14. 

followed. Webster v. 4 of Skertro^Z L Can S C r'^ ^^ ^° 
McKays. To^vnship of Hinchinbrooke, 4 Can SCR « ^%'''' ^"^ 
Rehurn v. Parish of Ste. Anne ic Can % r p ^^' '^^^"^^ '°- 

quashed with costs. ' ^ " ^•^•^- 9»' overruled. Appeal 

^/l^ur, K.C., for the motion. Atzva/er, K.C., contra. 

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<^H ' 

' '-I '- 




Grant ». Acadia Coal Co. 

[May 27. 

'^'^''^'"''-^<''-^f^^/-f2-~Staruto^ minin, re,uia,ons-I^.S ATS 
is ser.) cA8~Fault of fellowworkmen. '^•*'-^-^- 

h ( 

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Canada Law Journal^ 






Where, .,„ou«h er,o,. a„d u„U„ow„ .o .l;;i--t .t Xv °"^ 
„e„rio„ed in .h. applicanon for ,nsu,a„ce not nated^^ 

nevertheless entitled to the benefit of the insurance. 

"■• rsS.w,cK. ,.-The New Btuns^ic. AC. .0, sec»i". to «i,es 

.„d children the ^"'^J-;;;^ " ,« i'pIralLellitrcosts. 

. Clergue j;. Murray. L^^^^ '7- 

M., owner of an undiv.ded ^^^^^i^^^^^^^ 
Marie, telegraphed to her sohator at that Place sell P ^^^^^^ .^ ^^^ 
particulars ; wUl give you good on . C f- ^^ P^^^^^ .^^^^^^^^ 
Jfioo and the soUc.tor telegraphed M^^^ W-U yo ^J^ ^^^^^^^ ^^^^ , 

sixty-seven acre pa-e^ Korah "J - ^und^^^ ^ ^^^^ ^^^^^^^^^^^ 

Wire statmg commission. M- '^^'^ ^ ^he wrote the soh- 

.riting particulars ; awa.t my let^ . J^^^^^' J, ,,,h ^nd $300 with 
citor : "Telegram received. I ^J' "^""f ^*'^ ' .^.e a marked cheque at 
interest at one year. This payment I may ^^y J ^^^^^^^. 

par for $300 minus your commission $^5 ; ^d J^la *3^ ^^^^ ^^^.^. ^^ 
The property was encumbered to the extent °t °^e ^-J ' ^, ^^e balance 
deducted this amount from the purchase money and cnt • ^_^^^^ ^^^^^ 

which she refused to accept^ ^^f^^^XlM^yZ latter. In an action 

the former owner, paying off the mortgage he ay 

against M. for specific per^rmancef^^^e^ ^^^^ ^^^^ ^^^^^ 

authSt^rSr^KrM. was. sell her interest .r ,3^5 -, 
-^ t^Z^ S:: " c^^;-- S;^^o; l. the former owner 

for respondent. 

Reports and Notes of Cases. 


Negligence ■ 

G.T.R.VV. Co. -'. Miller. 

[May 27. 
■ Railway train - Collision - Duty of engineer - Rulrs - 
Contributory negligence. 

h.l/'""n^ '^' °^L^^ G.T.R.CO. "Conductors and enginemen«ill be 
held equally responsible for the violation of any of the rules governing their 
trau.s, and they must take every precaution for ,he protection of e 

orv'.h''" T ^'"""'^f ^"' "^y ''''' '■"'^^•" ^y ^"'^ 5^ ^"Sinemen must 
obey the conductors orders as to starting their trains unless such orders 

Ti^hM r^'^!'"^" ""' '"'^""Ser the train's safety, and rule 65 

forbids them to leave the engine except in case of necessity. Another rul 
provides that a train must not pas. from double to single track until it is 
ascertained that all trains due which have the right of way have arrived or 
lett. M. was engineman on a special train which was about to pass from 
a double to a single track and when the time for starting arrived he asked 
the conductor if it was all right to go, knowing that the regular train passed 
over the single track about that time. He received from the conductor the 

t^ "T^T "T^"^ "^'^ '" -^^'" proceeding about two miles his 
tram collided with the regular train and he was injured. In an action 
against the company for damages in consequence of such injury • 
nl,r "It ;"^""'"g.'*^^ judgment of the Court of Appeal that M. was not 
obliged before starting to examine the register and ascertain for himself if 
the regular tram had passed, that duty being imposed by the rules on the 
conductor alone ; that he was bound to obey the conductor's order to start 
the tram, having no reason to question its propriety ; and he was, therefore, 
not gmlty of contributory negligence in starting as he did. Appeal dis- 
missed with costs. "^ ^ 




1 ' ' 




Ont.) Town of Aurora v. Village ok Markham. [June 9. 

Appeal-Quashing by-law- Appeal de piano-Special leave. 

The appeals to the Supreme Court from judgments of the Court of 
Appeal for Ontario are exclusively governed by the provisions of 60-61 
Vict. c. 34, and no appeal lies as of right unless given by that Act. There- 
fore there IS no appeal de piano from a judgment quashing a by law (3 Ont 
L.R^ 609) though an appeal is given in such case by the Supreme and 
Exchequer Courts Act. 

The Supreme Court will not entertain an application of special leave 
to appeal under the above Act after a similar application has been made to 
the Court of Appeal and leave has been refused. 

Application for leave to appeal refused. 

Ayleswortli, K.C., for motion. Raney, contra. 


Canada Law Journal. 


[June 9. 

premises in close P'^'^'^'^y *? ^ ^"JJ^Tordinarily a dead wire, might 
another electric company -^^^f' ^J^^^^^et weather. The defend- 
become dangerously charged wuhelectncu^^^^ ^^^^.^.^^ ^^^ 

ants' secondary wire was -"^^J.^.'^J^''^^" ^n the injury complained 
several -o"^^^;--^!^^^^^^^^^^^^ Iffidently insilated at a point 

of was «"«^--«'^;;"^;7,^^^^^^^^^ While attempting to turn on the l.ght 
in close proximity to the guy wir • ^^ ^ wet and stormy day, 

of an incandescent dectnc^^^^ 

G. was struck with insensibility ana u ^.^ij^ently causing the injury, 

to recover damages against the ^°"P=^"y ^^J^ ^Tat the defendants were 

K.C., and Bissonet, for respondent. 

Q^^, R,CE .. THE KING. U""^"- 

Appeal—Criminal case. 

The Act of the Dominion If^^^ll^^^^l^Tt^:! ^ 

^Z of the criminal Code, ^c^^ ^--^ed^ ^^ ^^^ 

^<;3/«^//^ K.C., for motion. Cartwnght, K.^., ana 

province of ©ntario. 


Moss, J.A.] 
Trustees of 

[July 4. 
Township of 

School Section 5. Cartwright 
Leave to appeal- Public schools -Selection of site. 


Reports and Notes of Cases. 685 

Ayles^orth, K.C.. for township. RMi^ k.C. for school trustees. 

Osier, J. A.] 

T T, I Sept. c. 

In re Equitable Savings L. & B. A.ssoc.ation. 
CompanUs-Onlario Windtng up Act-Appeal to Court of Appeal-Prac 
tue on appeal—Final order. 
Ontario Joint Stock Companies Winding Up Act R S O 1807 c ,„ 

case ThTn . "^T^^' °' ""^^ ^^''^^^y °^ settlement of the proposed 
C. ^. &M, (o, ,h, respondent. 4./„„.,„/,, k.C, fo, .he appellanl. 

From Meredith, C.J.] 

Provident Chemical Works 7, r*v»^. r^ ^*^'' ^' 

tvoRKs z^. Canada Chemical Manuk\c- 

Trade rnar,-Fan.y nan.e-Deuripti.eletters-Forun,-.E..,e,uer Court 

use .he,e„r b, .he'detZ^'r rSTeTSt ^'"1 '"'. 
Judgment of Meredith. C T 2 O i p ,a» /^ t t 

y^./^(i877), 14 A.R. 444(x888). 17 S.C.R. 196, have not had 



Canada Law Journal. 

the effect of giving that Court exclusive jurisdiction to ^^jud.cate as to he 
alidUy if a regisfered trade mark, and in answer to an act.on '" the H gh 
Court of Justice for Ontario to restra.n the infr.ngement of a registered 
trade mark, its invalidity may be shewn. 

Betls, and Humt: Cronyn, for appellants. SluPUy, K.C.ana rw , 

for respondents. 

From Boyd, C^ Sawers .. Cnv ok Toronto. [Sept. 9- 

Assessntentand,rr.nuni to purchase- Local 

improvement rates. 

The judgment of Bovn, C. . O.L.R. 1^1 ; ^"^JP/^'J^f ,'„^d 
M^Qdlol.h, and McKeown, for appellant., fullertor., K.C., and 

Chisholm, for respondents. 

From Ferguson, J.l 

Beam v. Beattv (No. 2). ISept- 9- 

jnfant— Bond— Ratification. 

A bond, with a penalty, of an infant to '"I'-""';:; •«;:"=' J"^," 
damage in .spect of ,L=s in a ^^-^ P';'*'^ ::! b, "^.^"'cX. 

rr;:ra r.r;X'-trar;erLined .; tnaio... 

Sr^ot"S^Snl■■ e"»"-rK.c;, an. .»..., 
for respondent. 

■ [Sept. 9- 

From Street, J.J 

Ritchie z'. Vermillion Mining Companx. 

0,.pany^M>n,,, .o.p.n.^F^rC.a.'n^ sale ./ ,a.^-Irr,,u,an,Us 

in proceedings. 

^l^^^'S;:!^ .«, P;7 - ^,r.V^'e »»P»y i' tt 

:;rart:i,i?,::rt^t r:„ljr 5 [L .JJ^ .= 

holders in a rival company and are in carrying o 

interests of that rival company. ^,..„c LJ. 347. a*™'"'- 

J^JlXcX^il " cf and ^*./ ../.AT.., for the respondenu. 

Reports and Notes of Cases. 


From Macwatt, Co.J. ] Rex v. Trevanne. ^Sept ",8 

J^'^^i^>"'nary.„,,u,ry ^Opportunity to cross-e..amine Crirn. Code, s. 

represented hvrn!.' ^ T ! '^/P^^'''""^ ^'^'^ taktn, ,he prisoner being 
Zlroclf^il^^^^^^ ''f'' hercross.exannnat,on was concludel 

mLZuc aL 'r 1'°""'u'' '^" " ''•^'-'^ ^^^^ °" --«""' °f her illness. 

counsel asking rreplythether he :";;i; " " '"'^"^''"^ ^° P^'^""^"''^ 

:::^M ;:r::i~- ^= pZ:: ::^riafr::^ ::i::i 

the pro eel" olTe^'^l ^"f '^[''"Sly he did not further attend 

taken the prisoner was commi t d to trfal At the '^''2^'"'' ^'^^^y 
proved to be ton ill »« ,» ^ ^ , ^^ '"^^ ^'■'^' 'he witness was 

^5f 5;pd' ■; u.^ ^r:- ---r t™ 

^^'v/, for the Crown. Trrmeear, for the prisoner. 

From Lount, J.] 

Nelson Coke and Gas Co. v. Pellatt. 

[Sept. 19. 

allot-,!!''"''''''"' ""' ^''^^^^-'^Off^-^-^'i'^^^rauJ-Fonnat 

recoJe"rThe"l!:bscriptirori"' against an alleged subscriber for shares to 
si.ares o the co3nv hJd '/ k' ^^^T^'"''' """^^"'^''^ '"^^^ ^-^^^^^"ce 

I'een an. .f i^Sti^ o^^ ::::r^tr ^ - -- 

articlf tf a?socia"otw;;e T ^'T^.f^^'^^ '" 'he memorandum, and 
the compaT Sr^v X rVR ■' H^r'^f '-,7--^'- of 

%\ ' 1 





Canada Law Journal. 

The defendant signed and sealed a ^^^^^^'^l '^1^^^^^^, 
covenant or agreement with five named persons, descnbed as ^he apphca^^^ 
for the company's charter, and with ^^e company when mcorporat^^^^^^^ 
become a shareholder in the company to the ^7"" "^^^^fuld be ssued 
mon and .oo shares of preference stock, when the -n^ej^^^^^^.^^^^^ to 
and allotted to him, and to accept the stock when al -tted to mm. 
pay for the same when a call or calls should be made upon h.m by the 

''"^h^defendantatterwardssigK-d and -l;'^^.^°-7;;Xt:^^^^^^ 
stock subscription book, reading: ' ' We, the unders.gned ^o h^reW - e J 
subscribe for, and agree to take, the respective ^"J"""^°Vjf; ''J ''hereof, 
of the Nelson Coke and Gas Company, UmUed, a"d «f th^ da^ 
set opposite to our respective names as hereunder and l^ere,nafu.r« mte^ 
and t'o'become shareholders in said company. ^^/J^.^^^^^^ '[.^'^.t^d .^d 
and as the said stock so subscribed for by us. ^everaUy, sho 1 be .s ue 

allotted to us; and we do ^^^^'^^ ^^^^'^^^'^::ZlZt^^^^ 

and others, with the said company and the <*"^«"°"^" ,,„ ' . .. Z,^ for 

sa,d stock U.en the same shall be allotted to us ---^^^^^''^^ ^\'^; 

the same, to the said company, at P^' ^^^^^.^f .f^^.^^: \." Th a^^^^^^ 
n,ent shall be made upon us severally by the d.ectors^ 1 ^^^^^ 

were the same as in the first mstrument The defenda^^ an ^^^ ^ 

persons who had executed the first •"^^'"'"^"!' X" 'am's out of the 
few days after the first. The other two struck the.r names o _^ 

first instrument, but the defendant did ""^^^^ °-^^ "/,b Sription for 
executing the second document he d.d not intend it a. a subscrip 
400 shares in addition to the former. document did not 

SemtU, that the appellant's execution of ^^^^ ^;^°" J.^ , .j effect 

supersede the first ; but nothing turned upon that question, eg 

of both being the same. ■ ,„stant com- 

When the defendant executed the agreement he was inc> 

o^unication with a director of the ^^fj^^^-^^'Ji'^o'f The company, 
together in obtaining subscriptions for f "" °";^,^^^"^^^^^ .-th the 

HeU, that the contract ^^ J-^'tTacu'n forT^^^^ on behalf of 
company, at the request of one « 'J^ ^"-^^^^^ ^^ contract between 
the company ; that it was to be treated ^^^" °'''J" ^^„„ ^, request for 
•r'^'hranreXt^rrXlerdtrract. byd^eed. for 
t^^:^^:. r^eed was not .^^ered^ escrow, ^t was 
delivered to the company through its agent ^^^c-^^^^^^^^ ^e g y ^^ ^^ 
- not r.^-o^fl^l^- ^en°":purrb;t;frmpany, wa/valid 
rndSr^roVbtth^^s'^^- V. ^V...... L.R. . H.L. .,6. 

Reports and Notes of Cases. 


for preferred stock l)e called ud in full n.,^ .k . .u ~ 

scribers to pay the amount of h/ T ' ""'"'"■ "°'""y »" »"»>- 

January, ,^' On the 1 dIc" .'"'^^"'P'"'" °" °^ "^^^^^ '^e .8th 
dant no ify!^ hirn that the dirlrr.'*'' ^'"'"^^ "'^"'^ ''^ '»^^ defen- 
shareholders' .r the who e t^^Z'^t "'^t ' ''" "^°" ''*= P^^"*"" 
mentioning the date Ird nVr. r "°''' subscribed by them, and 

amount requ'td O^'hf "h IS'h"'"' and the number of shared and 
resolution lithrespec to the sh,tr' '^°°' **'" l^oard passed a similar 
ment in full on or Ere tth A^Pnl Td".H""''' ''"^ ^"^'""^ ^°^ P^>- 
defendant notifying him in the ,ame way ' '-^^u^er wrote to the 

as tH^t;^ <« i:^:^s::S":;is -'t^^ " !:^^ r ^^-^ -'^^ -^ 

no more than some siunification ! ;•. *°''^'' "''"" '^^ether, meant 

defendant wa. or had become 2^ ^l"'^""^ °^ '^^ ^"^"' 'hat the 

had agreed to take and thaT th^ r I" °' '^' ""'"'^'^" °^'^''»^" ^^ he 
.-ueandal.otmen;?t t Jat^:^^^^ a sufficient 

bound to accept and pay for them ' '^"'"P°" '^^^^'"^ 

;he., made a formal allotment of ^t^^:^ t^ rd '1^^ 

appe;^fSu;di;l:/rofth'e'oTT' '\"r^">-' ^-^^ - '-^ '"^^ 
of repudiation and Withdrawal ""^'^'"'Z"^ *"« ^^^^ by a,.y mere notice 

S.C.R. 440, distinguished ' "' " '^'"""'''' ^ A"^" "^ 5 

Judgment of Lount, I 2 O r r ,«« /-. r , 
/f'^/c.,* VI- r ,'. ^■^•^- 390; 37 C.L.I. 608. reversed 

Maclennan, J. A.] 

Centaur Cvcle Co. v. Hill ^°"* *" 

Sjo. ^n'-reased security- Ltmitation oj amount-RuU 

into Court, as security fnr th» T ^ ^ ° '° ' ^"'I $200 was paid 

proceed with the appeal mmself of the deposit and to 


;i •! 

Canada Law Journal. 


to the other appellant, and .t ^PPf""«'*'*^. indemnified by the other 
against the first appellant ^^^^•^"^'^'^^^"'"'iudTrnent, and to recover 
alainst all amounts payable by the «"» under th )udg-e ^^ ^^^ 

from the other any amount so pa.d and h'^ «^°;" "'J^^^^^ ,i„,t ,nythmg 

Held, that the costs of the ">°«'°" ^'^°"'J jj^ruitimately have to pay 

more expensive than usual, and that ^^e security sn g, ^here 

?:^oo; bStthatupon the true constructjoRu^^^^^^^^^^^^ 

security is given by payment mto Court, it cannoi 

than $400- .„ „r rr ni^u, v C and C. IV. Kerr, for 

Midd/etcn, for plaintiffs. IV. H. Blake, K.C., ana 
defendant Hill. ^an^y. fo' defendant Love. 


Divisional Court]. R- M-- [JuVy ^^ 

^^r-^r-xof"^ of fruit fraudulenlly packed. 
The mere having in possession P^<=^age of frmt >^^ ^^ ^^ 

such possession being for the purpose o sale, is an offe .^ ^^.^^ 

the Dominion Fruit Marks Act, 1891, ^ E^^ ^ ' .^^^^^ed by the 
immaterial that no one was imposed on, and 


branded end, but applies^o any shewn sujrface t^ejf.^^ ^^^^^^ 
/ D. Montgomery, for defendant, k. n. ^^ 

[Sept. 17. 
Street. J.,Britton,J.] 

Merchants Bank v. SloSEX. 

;, .oncurren. ^. of c, »• shouM "">,^' '^f /^u^d^CrS 
with which it is concurrent has expired by lapse o time u 
ti In^ will be set aside as having been improperly issued. 

^'Ports and Notts of Cases. 

The right to make 


ments ^r^i'^^or^T^ t^^^P'"',^ discharged from custody upon the 
Tacts upon the^pp.icLrfotdedTpon"^^^^^^ by the plaintiff of Lteria. 
;he c.e Of an order for arrest madt SX'^:;: --/r^d 

ca. - andtstr/cV^^^^^^^^^ -current writ of 

solicitor who prepared an affilv t en^^^^^^ 

arrest and upon which he oCed an Sr "PP'""."« '^^ '^^^ o^ the 
ca. sa. Upon an appeal to a n v^,? . ^ T ^""^ "'"'^'^ » "^* '^''t of 
in Chambers refusing t l^e ^^^^ °"'^°"'' i'°- « i"dgment of a Judge 
be discharged, ^ *^^ '''"" °'^" «"d writ and motion to 

i%/^ that the application should not be treats! .. 
new material from the discretion of th/r.H ! '"' "" ''P^'**' "P"" 

an application having for its obLt he In^' i"'*^" '^' °^*^^'' " ''"^h 
must upon the authorities ravefailed^S^"^ "'jf ' °^ ^'^^ °'^«^ ^"^ wr,t 
at p. 389. but was really one o he l'^^^'^'^"'" '^-^'^"^'^ ^ P- R. 356. 
set aside in its discretion ordrswhSh.^^^^^^^ ''"'^^f? °'''^ C°"" «° 
cealment or perversion of material fam h 1" "'''" ^y the wilful con- 
made out and the order a^d wri Si xfJ"^' " '^''^ "^^^^^ ''^^ been 
charged from custody '''°"''^ '^ ^"^ »^'^^ ^"d prisoner dis- 

Judgmentof Falcon«r,dge. C.J.K.B., reversed 
/ ^./^'^«. for appeal. / H. Lss, contra 


Street, J.] r,^ ,^ ^,, McF.r..kk .. Cot;i.TER. fSept ,6 

to Judge tn Chambers. ^ 

granted by a County Courr/udge and t °e n j^'^ '"'* ''^^ ^«» 
County Court, a motion was madrbefol P^°««d'"g'' entitled in his 

" under this section " is from thlH. • " r ^' ""• *"' "• ^^^^ ^"^-s. 3 (O.) 
the merits on the trial of rco„tes^^^^^^^^ ""T' ''""^^ J"^^« "P°" 

out a trial of the «at upon ^^^1:^^:::^^^^^ -^b- 



CattMia Law Journal. 

Qu.n whether the County Court Judge had power to make such 

"" °t^" « reL Grant v. 0>U,nan (.88,) 7 AR- ^^'9. referred to. 
Douglas, K.C, for appellant. Kodd, contra. 

Boyd CI 

QujRK V. Di'i.LEV. lSeP<- '6- 


.1 .u .,;oi \n restnin the defendants w;iO pro- 

""" ^ in favour 0/ children. 

A C.H his estate to his wife absolutely for herself, her 
A testator devised his estate 10 condition 

heirs and assigns forever, m heu ^^ ^^^'.^f ^Vn .^ if she should 
that she make a -\P'7'f:f/°;,;::;li\,'a instead of my estate 
fail or neglect to -^^J^j; f,^'^^^ \^l,\, ^ame shall be equally dwided 
being -f^'^^^^'-^^^St^een^; said two children, their heir and assigns 
tr AU^e\le%^^^^^^^^^^^ herein-before disposed of I gne and 

devise and bequeath unto iny said wife. had complied with 

^,/rf, that under the ^^ovc the ^^^^ ^^ 

the conditions ^ ^X^dtforlg J "^^^^ ^ -id residuary estate, but 
estate in fee simple in la"<i//°'™ "f P ^^^ judgment should so declare. 

province of *Wova Scotia. 

Townshend, J.] K.nsman .. 0.nKK.ONK. [Mj^-3. 

.• «n. h,ri been served on the Bank of Nova Scotia 

A garnishing sumnions had ^ee" servea ^^^ ^^^.^^^^ 

by two creditors of an absconding debtor. Onewasser 

__^orts and Notes of Casts. 


«e"rve?r!!ZKLsm/,'Je';„a!,aKerortt u'^" ''"^ '■'^^'"'"'"y 

'"oney of the al»condinrS, r ' J^^^ 

served the president. '' «Jepos,ted, «„d he subsequently 

havet£.;>" ''^ '"' ""-'^-^ ^"' '^^ P-*dent a. the head office .u,t 
K-cfria^ o? N:^a tSr ''' '''^ "^^"^^-^ -^''-- ^^-^^^'^r, 


(< i 


Province of Hew Brunewicft. 


McLeod, ].] 

LOct. 9. 

Stewart v. Freeman (No. 2). 

disc^^d ,: th:\;!r^::^ tr:^:^ :' ^r-t'^ ^^p-- '^^^ - ^^^ '^-s 

missed ; and where the case ?o e,f r *'?""^ '^^ '"" •""" ^ dis- 

fact.s ad„.tting of ^^^^^t:T:Z^:: . ''' "" ''^"'' "P^ 
demurrer will not lie, thouEh no r. i f , r ''" ''^'^"^e"' '" «he bill 

l>e granted at the hearing °' '" "'*^""'^^ ^°^'"- '"^y 



province of Manitoba. 


Full Court. 1 T 

-" Uwisz'. Barre. ,t , 

tton— Quality of goods. ^ 

tenti^::^:?^^^^- -'d -^ ^e|;v-ed. The pla.ntirs con- 
on hand and such as they ^ , k, 1 " r"'"* '°' '"' '""^ ^""^^ ^^ey had 
warranty as to quality. The d'efnZtr"' ^^""^ ^'^^ ^"h^' -y 
rejected the remainder. At the r l^r .Tf ''"^^ ^"'^ subsequently 

defendant contracted for '.fine' butt:" , k' '"'^"^«"^' J-' ^^^^ '^e 

^ butter only, that u was not proved to 




Canada Law Journal. 

h.v. b,e„ of .ha. ,u.,U, and .he prop,«, had no. passed. Upon appea. 
to the Full Court, , . contract and the accep- 

H.U, that the quality -^ -^f^^^^ I'f .S^^^ to accept 

tance of part of the butter as ''fine d^d "ot bm ^^ ^^ ^ ^ ^^ 

that which was not in that condition. See /^J"«^« 

'-'■ is K^clTnl I^lDCfor plaintiff. ^^a.A K-C and ^....«, 
for defendant. 

province of British Columbia. 


v„«-r,N Trading Company. [July 29. 
Full Court.] BOYLE v. Victoria Yukon Trading 

Pr««/ of - Exemplification ^Judgment 
Foreign judgment actton ''^^^Uoluestion-Final and unalterable- 
founded on void contract-- Right to quesu jjit^^ ^ires- 
Company -Extraterritorial contracts of earn . 

foo.vp T aivine judgment for plaintiff on 

Appeal from judgment of Drake J..gv ^^ \ ^as incor- 

a judgment recovered in the Yukon Teritory. l^e P^ ^ ,„„,,act to 

pirated in British Columbia and was -f J^° /^^^jj^^.^^ in the Yukon 
carry goods from Bennett in British Columbia 10 

Territory. . . ^o :. , foreign jurisdiction though 

nk a default judgment obtamed n a ^^^^fj^^^^^^^,,^ •> within 
liable to be set aside so long as ^^ stand -^^ h -^^i^ra.nis, and con- 

the meaning of that expression as applied to lorc k 
sequently it may be sued on in '»>•« P'ov>nce. .^ ^^^.^j^^ 

In an action on a foreign 3"dgmentth« ° j^ j^ manifestly 

challenge the validity of the Judgment on the g ou^ ^^^^^^^^ 
erroneous such as being founded on an ex facu ^^ ^^^^^^^^ ^^^^^. 

The province may create a ^^7^"^ ^/'^^ ^ ^^,,^ vires of a company 

;^i:S'rS^^:^^^ -- to carry goods .om British 

Uon to produce it '" -^^^^^Xf'T'/'./.". K.C {W. M. Griffin. 
L. P. Duff, K.C, for appellant, t. re 

with him), for respondent. 

Book Reviews. 


Con™,„.: Canada Uw B„„k Co„;„;-: ,0™;' ^f ""^ »' 

was driven ,„ atp, fo™f Sf f " Tp 7r"'J" "'' """="«• " "» 
usages of Ontario. "-'Ppropnate to the conveyancing 

Ttie first edition of Mr O'Dricn's l.nnt - j • 

carefnllyandaccuratelvcmtDiW TnH ,1, r '^'""''^ '" '^^- " "«» 
most lawyers needed I ?Z^1 ^ I" ''""" 8'™" '" " ""e such as 

otherbooks o?con.e an t/for °' "'-',''"»-! b„t this and a, 
the work before us, which s a evTlTnd °T ft '° '"= '"""''"^ "V 
first book, yet so changed anTJo T ^'^"^ '"""'" "" '"'• 0'""'"'s 

work rath;r',han atS ed," tn "■"'"='■'"'- - •» ^ - fact a new 

ontiti^d-iTnX' trs :^x^ hr t':,''=e:,r„r -- -- "- 

The company forms include those for by-laws svnrfimt. 

statutes and OrdersrCmmcil ^.vinf.? T^" "^^f"' ^''^^^^^ ^om the 
these matters. Thi "nforma onTn! \ f r" ' u^ ^^^"'-"""^ '" regard to 
forms or conveyanc ng and wU? Z^l °'" ^"" ^'^^" '" ="y ^"""^ °f 
officials, or a study ofthrRev" d Sat t-'Thr'r' corresponding with 
and now antiquated, revision of x886 tote plentda^:^ '"•" '''' '^^^' 



Canada Law Journal. 

,H. „xs oMO can .„.n.ion .0 so.. a-.e, of ..0. a„a l„^*^^ 
a concise exposition on the law of dower as it now sia 
'''"rhTconvenience and utility of a good, accurate -d practical book of 

Barrist'er at Law. London : Sweet & Maxwell. Lnnued, 3 Chancery 

Lane, I>aw Publishers, 1902. i 

This is a new addition of a standard work and will be gladly received 

rh.s 'sa newaaa down to the end of November. 1901. 

by the profession. " ^""f "'^ ''f '^' , since then many important 

for the material part of the work. 

. M/ /«,.., hv R M Minton-Senhouse. Second edition. 
'"'t^Z ..ter^'MLwell's Chancery Lane. W C, Law publishers. 

ThTs is a treatise on the English Employers' Liability Act^ Lord 
CampMl-rActs, and The Workmen's Compensation Acts and matters 

"''oneTnot surprised to be told in the preface that much of the first 
^ition ?bv Me srs. Minton-Senhouse and Emery) has required to be re- 
of work to courts and text writers. .^^\^^^'J^^^^^,^,, .hereby the 


r.rsr b^n3;?n oi::': J >,. !n ... co,o„.. ,o,^- 


Camba Xaw Journal. 

siderations, such as local jealousies and the laissez W nnP ; 
an antiquated colonialism. ia.ssez-.aire pohcy of 

ory cr,„<:,s™. Thi. is one of .he „,a„y reasons w y we de"^ I".: 

The proposed changes in the Judicature Act are aonar^nfl 
fiign Court. This is said to be desirable at th^ „, 

CorLr ''%H'°r °^ ^^^-' ^^ over^w^lferan 'L' hS.' 
Court ^dges, with those recently appointed, have time on theTr 

I!-' * 

1 -■ !^ ) 


' ^^t 


"■ r,r,aW=nP two divisions of the Court of 

hands ^'^^'^^^^z:l^^t^^^^'^""-'^^ ' >^'^"°:^ 

Appeal, composed of three juagc ' . been abandoned. 

thrHigh court), has P-P-^^ ^^f^i^^^^^^^^^^ „, to send to the 
Shortly stated, .t .s P;°P°^^^:;";j^f„„ 'u appeals from judgments 
Divisional Courts for fi"*^^^^J"^''*'*°" ^^^^^^ in dispute (except 
of trial judges or single J-J^S- -^"^;^^" Betre next session it 
in certain specified cases) .s ""f^^ ^^'"^^"^ J„, throws too much 
„.ay very possibly be found ^^^J^^f^^ ^^^^ other injurious 
work upon the Court judg ^^^ j.^.^^^^^^ 

effect, or it may perchance be ""-g^^ "^^^^ ^ j «nes are to 

whose smaller sums are as -"f^ ^^ J^f J, Jy constituted 
others, the recourse they ough ^o have t y^ ^^^^ 

appellate tribunal, presumably of more we,g«t 
three judges of the High Court. 

General the opinion of its members w u^nt the option 

sideration.thatitwouldbead^.sabl t^^^^^^^^^^ ^^^ ^^^^^^ 

to print or typewrite -PP^.^^^^^f^^;* ""^^ritten. should he costs on 
whether the books are Vr^^'^^J'.'^^^ll .^^ to be paid by the 
the appeal in the f "f °" ^/.^f .^ °o k« had consented to the 
respondent, if so ordered, ^^^^^l^^^^^^,^ u was also suggested 
books being printed ^n^t^^^.^f '^^.^^""^d an improvement in the 

argument if so advised. 

Me.-, of ..e p— . -;--- tf1J::z 

effort to advance its interest* m any g Association. 

^„ „e -'-■"t*"Th?r t .hi germ of usefulness, and « 
„ „„„,d seem to ^ave w«h m . *= «' ^.^ ^„^ „^,rf .„,„ 

trust it may be carried on »■* f'^/ , ^^ follows : "To 

'objects as set forth in *;--""■" J^"- <>' *= "" ■ '^ 
maintain the honour and digmty « ™ P ^ ^esy in the pro- 

Editorial Items. 


and to cultivate l^.X ^r:o:TjTTl °' ^'^'^ P^°^^^^'-' 
hood among the members °Thrffi'' *^' 'P'"' "^ '^'•^^her- 
known and esteemed members If thf "7 "' ^'■"*^" ^^ -«" 
energetic body of m^n fro' K P^fess.on and compos, an 

should be obtained It wasThotrh""^^^"^"^ good'results 
of this association was in some . « '°"'' ''''' '^' ^°''"'""°" 

of York Law Associa^n ^2:1:^^^^ .^^ :""' '°"=^^^ 
that organization. We should rLJr.. . ^'"'^ °^ ^^^l^^" "& 

Association has done gt.d feZe Tk'"''' ''"'"''' ^^ ^^^ bounty 
in which it took a sp'la „ "" *'^ ^^f '" ^^^ ^-^ of wor. 
maintenance of an excdlent ,0" m V'.' "^^ «*^blishment and 
the sort indicated is hapoTv 1° ^'^'"''^ ' ^"^ ^"y '"^-'i"? of 

to be room for bo^h asTo datbnr^'T- ""'"^ "°"'^ ^P^^- 

harmoniously together rthrbe^efi^n^:^ '°"''^^-^ ^°^^ 

fession as a whole. The member f!», ^^^^ntage of the pro- 
believe, been ven. act.VeTn c^ . "'^ association have we 
solve the unlicenTed convevandnr M "'*' ^'^ ^^°^^ ^^^^ to 
practical has been accoTpfhe"^^^^^ "'^^^ ^^^^ng 

sion will be greatly indtted o fhrm 'TrVa ^ "'" ^'°^^^- 
• ways m which such an or^:.n\,J I ^""^ '"^">' other 

that the workof its officers mav be? T "" '^'P'"'" ^^ *™«t 
by the energy exhibited" theTnceprnoTth"' '".' characterized 
are glad to see that the older ocietvTs n ""'^^'•*^'^'"^- We 
informal social gatherings A linrK ? ^'"'•anging for some 

in such matters will do no ha^m,'°T' '"^ friendly rival^^ 
protect our intereststgaTnstTesTrr t^^^^^^^^^^^^^^ - 

The executive of Toronto Bar A«r..w ^'^'^^""^ 'within. 

Christopher Robinson KC vp''°"'' "^ ^°"°^« = President, 
Secretary. Thomas R;,dT ^'""^'""'^^"t. R- C. Clute. K.C • 

Trusteesf^ssr^D M;Ph;rnT'H^''"" ^' ^^'" •' «°-^ °^ 

Vice-chairman; Frank EhX^'k^^^^^ 

Cooke, E. J. B. Duncan W R I " .k „; „ ^- ^^^donell, F. C. 

DuV.„e, W. N. Fe';„:r„^'-S^'™„''^^7"^. ^^ ^^ ^' 
C. D. Scott, W. G. Thurston. ^>'^'*"»an. R. J. Maclennan, 

Canada Law Journal. 

ownership of street railways. O" ^^^ J'^ °j ^ .^e municipal 
Mueller Street Railway ^ct was ac epted by ^^^ ^^^ 

electorate by a large majority of votes 1 he ^^^^ 

enacted by the Illinois legislature -^^^^j'^^^^^y and operate " 
any city in the State to " ^^^ToT^'^^^^-^-^'^^^^ ^^ ^ 
street railways ^^^^^;^^^llT'^l;2 r^.. the money to buy 
majority vote. The ^'^^'.^^^^^^'^^t^ authorization ; and a 
the railway property without statutory a 

modus Vivendi inhering in the q^^^^^^^^^^ ,o Hcen- the street 
instead of granting any franchises, Proceea 

railway companies until ^^^^^^^^ ^s Adopted b the 
to compel them to give satisfactory service ? J ^^^^^ 

Chicagoans by a -te o -o » X^-^ ^J^ ,f this 

Carter H. Harrison is "°^^^\\^"^f^^^^^^ 

venture of municipal ownership for t^^ g°°° Pf J: ,^ ; ji g^rvice, 
He fears that " the unsatisfactory ^l^^^l^':^'^.:,^ .eandais. 
which of late has given rise to ^succession ^^^ 


Z'::^'^!::^^ :^ic.. L existing evl. of the traction ^ 

tinctly of the opmion, formed >f'=' "^"^^ "Lr how excellent it 
^.deration, ''■- "-^^ thT'^et^ cldmon of thin,, political 
may appear m theory, .n «"=!>" j:„,t,ous to the interests of 
„d municipal. »-><' J-^^,,^ p^'nUow standard of public 
ramr Whrrmly CsiWe fn England i. not necessarily 
possible in this country. 

inquiries by Magistrates in Camera. 



cocking main which la^t 1 Tu participants in the 

pubhc'attenti: reJat a ;tt'^^^^^^^^^ 'm""""^' ^'"^""^ °^ 
magisterial authority from iri^ort T"^''"^ °' '""'^^ 
from that functiona^'s own 1dm ss^^ tlT ' """^' ''''^'' 

November last, he fXmed a corpac^^h ,°c^r""'"^ °^^^ 

*aJI be deem^ an oZ t '^m"^ """P'"'"' °' i"f<"n.ation 

.e„e.a„, ^aXe X.TAa'^t'rr '" ""* "" ?""'■•= 
contain them ^ ^^""^ "" conveniently 

(when holding a preliminary inquiry^ in hTH- t- ^ *' ""^^^ 
no person oth^r tCn fk '"q">ry) in his discretion order that 

which .he e„,„T; ITw W^T/lVo" t '°°"' °' """<«"« ■" 
appears ,o him rta. the e„L of jute" »i 1 ^ h" T" '°""^' '' " 
doing." 1, would, ,he,^fo,^, aX,"har.L '"'".- ""^ '° 

r«d to, provides for an exac rev^sll „f I ■""' "^'' '•''■"• 

for by i. pnVaey was to i „b« ^ in t^ """'"'^ *'"''™=' 
tried summarily and it is „nf „ ? r . "^ ""^ '^"''""^ '<> >« 

appearing befo. be PolS'Esfrato'f TT"' "" ■"'™' 
we. to have .he screen removf/C'^Ser.llSr '"""'' 

The usard^^nl'ul a TT ' -"' P««"/"nders.ood 
Encyclo^,aTf"t Cs o^E „: T- "'• "" "' '""■ '" '"' 

^.hstanSTng Changes t;;o::dtt%Lloro;7^c:t 


f' f 



Canada Law Journal. 

brdr ofthe Court, wh=re .he subject of inqmry ought unfold 
'"th:'p:::nt'ScS justice of England, when Attorn^- 

GeneraVadvis«. the Brewer. Society, '- »;';-"?t"tTthe 
r^ee Stone's Justices Manual, 1904. P- 77^1 that Justices 01 
(bee btones ju i ^ hearings, 

Peace could not, in ordinary cases., oar any yjvv^^ 


those to whom it could endanger. " «"" '« " °" ^ j 
this connection to remark that no order of the Court of this des 
cription is so far as adult women are concerned, enforceable by 

"'Xi^^ V. C«,f^. .0 B. & C. 240, determines that a Justice of 

be ejeciea iru ° q R SH (afflrmed on appeal, 20 A.K. 

pass F.««^ V. Sayl^,22 aR 5i3 .j^, judgment 

645) is to the same effect, y^^'^y^y^ ?_.. ^^„„d upon which 

of the Court in ^aubney s^C^^pe^^^^ ■ J J ^^^^ J 
our present opinion is formed is ^'\*\;"'lj. J-^^^^^jging a judicial 
ing upon a summary ---;°";f "^^^^^^^^ eisential 

on, if there be '-^j^f "^ prlL'^hl.Tno speci/c 
r:: r;XtrStLl;ed, h^a n^ht .o ^ presen. for 
the purpose of hearing what is gomg on. ^^^^ 

. • affule nrs he force of his objection .ould seem to have 
tamed a rule nisi ^^uic i«ji ^ f„rfhpr^ for the purpose of 

been admitted, since the case d,d not go furtheO or the p p 
quashing his conviction, made where the ''f" '" "" , „i,h 

Lurred^as kept locked during .ts ^^l^^^t^^-^t,' ^ 

"^nr^iidrnr N^ z;.^, t. .^ ^ - dow„ .ha. 

j;^»^«^>^4yj^«/ra/w in Camera, 

any member of the community wl ose nVhfc k, u 

with a .rial i„ accordance wil^h 'aw ' °""'^' """ "> P""'" 
In Collier v. i^/r^j, 2 B. & A TenterHi^n r r 

be present, as in other courts " Park T r^J.^ ^ * *° 

*h#. L.;«„v u- "u«i». rark, j., remarks, at u 671 • " All 

tne kmg s subjects may be present " . ^ p. 071 . All 

;• When we pa. r^t tt e::„it .tZ d ^^Tj' Jte ''^' ^ 

and Q„een mL. The sec,^, ilT ', ."^f '•'"'"™' »' King Philip 
open and judidal ■ the e " - ' P™C'«ii"Sr has become 

prisoner, bui a prell'J^^a; ria in X,h\" ^r'"""" °' "■' 
modem times is to many c Z.^^ ,1, "^ " """' »''"''^'> '" 

symbol of law and jS. ^ Z^.^^^ '"' """""^ 


quite inflexible ; some few ^S'!"^^^'' "'^ of pubhcty is not 

decency or policy and n so^ ^ ^ *"°^"^ °" grounds of 
/ t^in.y, ana m some iunsdictinti<i *»,«,, u l 

firmed or extended by „a,„„, ' ^1 " „ T- ! **" '°"- 

^cr:- r'the"?^:: "X ^^-'-^^-^^'-^^s^^'^z 
.ice o. ^H:Lt^ixizt"t,t7 T"' «'■ 

I. m it costs " '^*" "^^'^^ ^^ society 

i..uttrat^„reroTth:'^;m-^:r?:d: r-- - -- 

has not been overlook-ed There uZ\ t u '*"• "° " ^' 

the crimes and offencefparUc Li ed/rif.'^ ""' '"^'"^ '° 
matter of sex is concerned and .hn„ ^ J "" '^'" *''=™ "« 

the rt.le of practice roexcTuHil^ ?" " '^"""' "'"■ """■)• 

becomes s„';e^:^:d „d .ta '^i'-'"" "°™=" ^"^ "■■'<"•- ""'r 

.-med o„. ,„. „, saving s::sei;.u:r,:b?",trd r' ■" 

operation here, for. even if the secWnn f ' f ''^''^ "° 

; Of «.e .cace, ^>>^^^ X^TZt^-^l^Zt:. 



Canada Law Journal. 


K* tn be conserved would in his case at any 
mon law power sought to *>«^°"^"r; ^^.i^de for unseemly 
rate.consistofnothing beyond the rg^^^^ ^^ ,^, 

behaviour, either directly or mediately oy 
contempt in face of the court. v^tween the parties 

U may be a question how far the ^^^^^l^Z'""^ ^^^^^^ and 
hereinbefore r...rred - '« ^ agree^t^^^^^^^^^^ ^^^^^ 

legally a conspiracy. Of l^^/^J^^J^J^^ ^^, ,here is some doubt 
the judicial plummet in ^hese waters t) ^^^^^ ^^ ^^^^ 

whether bottom has been reached^ In the ^^ ^^ ^^^^ 

principal actor is a lawyer and ^Pa^ ^ro- -^^^^^^^^^ ,,,,,ding 
propriety of such a compact, he entirely ^^^ ^^^ ^^^^ ^^^ 

,, our view ^^^^^^^^^ "e^ion in the^House. when the 


the matter. 


To what ».en. docs opinion of coun.- P'°'cct in actions of 

„,alicions prosecution? f„„„i<,„3 of judges and juries 

. For many years the respecuvc „isKnce of reasonable 

as to the questions of ^^^;^^^:ZrorTZ^ of malice, in 

and probable cause, and the presence ^^^^^^^ 

actions of malicious P-^°^«;"^'?"; 'jjlrthat must co-exist in 
Sometimes the J^^ge lays down the factors t ^^^^.^^^,^,, 

order to support the act-n. and directs a ge^^^^ ^^^^^^.^^^^ 

fo, plaintiff or defendant in a-^f. ^^^^^^^^ ,,,,, the issues sub- 
on the one hand, or fa Is to estabUsn, ^^^ ^^.^_ .^ ^^^^^ 

„,itted for determination ^X J^e ParU ^^ ^^^^^ ^^^ 

words, that the finding of -;'^^'" ^^^^^^^^ would or would not 
constitute reasonable ana P^t^^bl^^^^^^^^^^^^ ^ ^^ _^,^„,, 

indicate malice, and that tne ^^^. ^^ questions 

rrnltL"nrr;l«etrf;r institute 

Actions for Malicious Prosecution. 


When the prosecutor has taken the opinion of counsel on facts 
submitted for his decision before laying information, another 
factor enters into the consideration of the question. 

In 18 1 3 it was held by the Court inl Hewlett v. Cruchley, 5 
Taunt., page 277, that in an action for malicious prosecution it is 
no answer that the defendant took the opinion of counsel in what 
he did, if the statement of facts was incorrect or the opinion ill- 
founded. Mansfield, C.J., on motion for a new trial, said : " But 
one would at least -xpect that the defendant, in order to purge 
himself by the testimony of the opinion of a barrister, ought to 
shew that he laid a most full statement of the case before him 
upon which he could form a full judgment of the propriety of the 
case." Heath, J., said : " It would, however, be a most pernicious 
practice if we were to introduce the principle that a man, by 
obtaining an opinion of counsel, by applying to a weak man or an 
Ignorant man, may shelter his malice by bringing an unfounded 

Chief Justice Abbott, in Ravenga v. Mackintosh, 2 B. & C, p. 
693 (1824), substantially charged the jury to find a verdict for the 
defendant if they were of the opinion that, at the time when the 
arrest was made. Mackintosh acted truly and sincerely upon the 
faith of the opinion given by his legal adviser ; but to find for the 
plaintiff if they were of the opinion he intended to use the opinion 
as a protection, in case the proceedings were afterwards called in 
question. Bayley, J., in delivermg judgment on motion for a new 
trial, said : " I accede to the proposition that if a party lays all the 
facts of his case fairly before counsel, and acts bona fide upon the 
opinion given by that counsel (however erroneous that opinion 
may be) he is not liable to an action of this description." 

This question is set in clear light by the great leading case of 
Abrath v. North Eastern Railway Company, L.R. 11 Q R.D. 440 
(1893). Briefly summarized, the facts were these : The plaintiff, a 
medical doctor, had attended one Mr. McMann for injuries sus- 
tained in a collision in two trains upon defendant's railway 
Principally upon the representations of the doctor, who described 
the injuries as of a most serious character, the defendants com- 
promised Mr. McMann's claim for a large amount. In conse- 
quence of certain inquiries set on f^x>t, it seemed to the company 
they had been made the victim of a conspiracx- on the part of the 
doctor and his patient, the injuries being far less serious than 



\ I 


f -f 




Canada Law Journal. 

represented. The facts as disclosed were submitted by the d.rec- 
orof the company to counsel, and he advised that there was a 
good case for prosecuting a charge of conspiracy -fia«nst ^^^ 
McMann and Dr. Abrath. his medical adviser. 1"^^ ;;'°' ° 
this, two eminent medical men were of the opm.on that the case 
of the alleged injuries to McMann was a fabrication amounting to 
an Imposture. Information was laid and Dr^ Abrath committal 
for trial. He was acquitted, and thereupon brought an action of 
malicious prosecution against the defendants^ Fhe t"al judge. 
Cave. J., left three questions to the jury : (i) Did the defendants, 
in pro ecuting the plaintiff, take reasonable care to '"form them- 
selves of the true state of the case ; (2) did they honestly beheve 
the case which they laid before the magistrate; (3) were the 
defendants actuated by any indirect motive >" Pf" ""& th^ 
charge against the plaintiff The jury answered he two first 
questions in the affirmative, but gave no answer to the third 
whereupon the judge upon these findings ^rew the inference of 
reasonable and probable cause, and directed a verdict to be entered 
for the defendants, and accordingly gave judgment for them. Un 
appeal to the Queens Bench Division, this judgment was set 
a^de. and a new trial ordered. On appeal to the Court of Appeal 
the judgment oi the Court of the Queen's Bench Division was set 
aside, and the appeal from the order for a new t"al allowed. 

i; his judgment in the Court of Appeal, Brett. M.R . character- 
ized the charge of Cave. J., to the jury as most masterly. Among 
other things he said : " I wish I could express what intend to 
sav as clearly and as concisely as he stated this case to the jury. 
a' summing up in an action for malicious prosecution I have 
never read which I more admired." 

This model charge was as follows : " I think the material thing 
for you to examine about is whether the defendants in this 
particular case took reasonable care to inform themselves of the 
true facts of the case. That. I think, will be the first question you 
will have to ask yourselves : Did they take reasonable care to 
inform themselves of the true facts of the case? B«^"««; '^ 
people take reasonable care to inform themselves, and 
sTauding all they do, they are misled, because people are wicked 
enough to give false evidence, nevertheless, they cannot be said to 
have acted without reasonable and probable cause ; with regard 
to this question, you must bear in mind that it lies on the pla.nt.ff 

Actions for Malicious Prosecution. 


point, and that is, when they went bTfor. J *'"'^'''*^'' 

honestly believe in the caTe w ich fheV Ld"' H:"'; ''' ^'^"^ 
grates? If I ^o before magistrates with . c ,• 7 I '"''"" 
be good on the face of it and saHsfv hJ appears to 

one wav or the othpr th»„ i i n . •»cc"rainf^ 1^ you find 

dir=c.y„u„:«heMr '■"/„'':' ;:'/;:" "--">-■;' ' '>■»" 

.her. W.S ...scablc and probab e oa ° e o ra^ilTa T" ','"' 
questions should be answered in rh. .k °'f' '""' '"'" '•">« '"•> 
defendants did take iZ^.l r ""' '"""""'ve-that is, that the 

sfdid r L?::rs:„r ""°- '^ - --^ ---s 

they actuated by some motive oU .tH k" '7' ""'' 

h^^y t;iei?:hVTr:h:^hr:::^ratk'^ -' 

indirect motive other than a sinceJwish to hri '^^ . 

.uuty man to justice, then the plaintiff is entMe^ry ^^^^ 

damag^"" ""' ■"""■' "'^"^'^^ '- --<'- 'he'questron o' 


? 'I 


Canada Law Journal. 


Appeal of the Queen's Bench « .",« ^'^ ^ -« °^ ^e 
arose in a misconcep..on o" the ^rt o ^^ ^^ 
mode of proof. The Court 01 "FH^ . ^ f ^^„ 

Division held .ha. .he burden "' P«»f «'» °"^ *'J, ,,„„ ,be 
defendants .0 «tablish probable and '^'^J ^^ ^, 

facts n--^/",?f JjLrtit ^ain«he «ould be called 
knowledge. That ,f .t f^'"^ J™ J „^, contended by many 
^pon .0 prove » ""^Xd o W 5," and .ha. it had 

-^ru'nlLsVrrnrrc^drfelnable and probable 

cause for having prosecuted. ^ . ,. . „ .he principle, that in 

The result of this de-.on esUbhshe^^^^^^^^^ 
actions of malicious prosecution the jmr^en p ^^^^^^ ^^^ 
rests upon the plaintiff, as wd to shew -n^ ^^ ^^ .^^ 

probable cause, as to P'°^\"^* l^"' "„^^^^^^^^^^ of the defendant, 
existence lies peculiarly w.thm the kno^vledge o ^^^, 

Further, this case demonstrates how ^^" ^ f^^^^^^^^ i^yed 

defendants took the opinion of -^^^j l^j^^^^^ r^fo^^^^^ a's a 
in its ultimate decision. It would ^^^^iorof counsel as a pre- 
legitimate inference, that .aWmg^he op.mon c^^ co^^^^ ^^ ^^^^^^ 
cautionary measure may have oeen * 
the jury to find as they did. j^^ j^ I 

It is only when the P^f^" ° ^^^^^^^^^^^^^^ and fully 

advice or opinion of counsel on facts apparently ^^^^ ^^ 

disclosed to his <=°-"^^'-"^.,^'\",'""lr While the onus of 
„.alice, his defence can be said ^^ ^e - -red W _^^^^ .^ ^^^^ 

proving malice rests upon the P^^J^'f^^'^^^^^ey are not bound 
^:r rr the^r: tw::eT^^^^^^^ \ -onab. or 
rr^ car cannot be in.r.d -m P- ^ ^^^^^^^^^^^^^ ^^^^^^ 

1 S:^:^/rr^-"^^eVion given by tha^ 

1 counsel, he is not liable to an action^ (,898), the court held 

j:.tirndin^sr ^^u^lo^n LLUi. on .e advice 

Actions /or Malicious Prosecution. 


-of counsel, it was not sufficient to protect the prosecutor, if he did 
not exercise reasonable care to ascertain the facts in reference to 
the alleged offence. 

The question arose incidentally in Horsely v. Style, 9 Times 
L.K. 60s (1893). This was an action on the case brought to 
recover damages for the wrongful registration of an inventory and 
receipt as a bill of sale, which was not a bill of sale, whereby the 
plamtifT was injured as alleged in his credit A verdict having 
been awarded plaintiff, on appeal to the Court of Appeal the 
verdict was set aside and judgment ordered to be entered for the 

Lord Justice Esher. M.R.. in delivering the judgment of the 
Court of Appeal, said: "That the defendant had used the law 
which said that a person who was the grantee of a bill of sale 
could register it. The defendant had An inventory and receipt 
which his solicitor advised him should be registered as a bill of 
sale. The defendant, therefore, was using the law relating to bills 
of sale. It must be taken that he used the law erroneously 
That was not enough to make him liable in this action It must 
be proved that he used it maliciously and without reasonable and 
probable cause. It could not be said that there was a want of 
reasonable and probable cause, for his solicitor advised him to 
register it. Then as to malice, that was doing a thing from an 
improper and indirect motive. There must be actual malice It 
was not enough that there should be legal malice, if there' was 
such a thing. The learned judge, therefore, was wrong in telling 
the jury that malice in fact was not necessary. In the present 
case all the witnesses had been called and no further evidence 
could be given, and no evidence of malice had been given There 
was no use in sending the case for a new trial, and judgment must 
be entered for the defendant." 

In Peck V. Peck, 35 N. B. R.. p. 484, it was shewn the charge 
upon which plaintiff was arrested was made on the advice of 
counsel, but it was further shewn the defendants did not disclose 
the facts fully to him. A verdict having been found for the 
plaintifT, a rule for a nonsuit or new trial was refused by the court 
en banc. 

The following genera! rules should be borne .strictly in mind ■ 

I. In actions for malicious prosecution, the plaintiff must 

allege and prove absence of reasonable and probable ca jse and 


Canada Law Journal. 

If he 

malice. The affirmative of these allegations is upon him. 
fails to establish both, he fails altogether. , . ,• k 

V The factors necessary on the part of the defence to estabhsb 
reasonable and probable cause are threefold first, behej « "^e 
accuser in the guilt of the accused ; second, behef in the existence 
of the facts upon which he proceeded to prosecute; and th.rdl>^ 
that such belief was based upon such reasonable grounds as would 
ead any fairly cautious man so to believe and so to act^ Lpon 
he finlgs of the jury on these points, the judge draws h.s .nfer^ 
ence ani Lermines whether they disclose or not reasonable and 
nrobable cause The inference of the judge is an mference of fact 
Td not of law, drawn by him from the facts found by the jury 
and from all the circumstances of the case^ 

, The malice necessary to be established i. not malice m ^w 
such as may be assumed from the intentional doing of a wrongful 
Tct but mice in fact. Any indirect, sinister or improper motive 

^°?T:kl?:hro;inion of counsel before proceeding to pro 
secute amounts only to a circumstance, which the jury is bound 
o con^der in determining whether the accuser was actuated by 
an honest and sincere desire to bring a guilty party to ju.tice, o 
whether it .was resorted to merely as a cloak to cover some covert 

" 'f From'wTnTof reasonable and probable cause, malice may be 
infer;ed The question then arises : Can the jury, for the purpose 
of altermining'the question of -lice, draw^themse ve^ or s^^^^^ 
ourpose the inference of the presence or absence of «asonab^ 
^Xobable cause P Such is the view put forward by Sir Henr^ 
Hawkins in his judgment in Hicks v. Fanikmr, L.R. 8, Q.B.D. 167. 
At page 75 he is thus reported: "Absence of reasonable cause 
to ^ evidence of malice, must be absence of such cause in the 
to be eMae ^^^^^■^^^^^ and I do not think they could be 

:rp:r; o t co^^^^^^^^^^ opinion of the judge upon that point 
ffTd ffered from their own-as it possibly might, and m some 
aL probably would-as evidence for their -side^^^^^^^ 
determining whether there was malice or not. In 10 case, how 

'r ';:T^*f Je'T^n." of" el^oa'abVcTuVe ^s for .he judge 
It^et delermre upon .he fac.s found, for the ,u,y . as ev.dence 

Actions for Malicious Prosecution. 


of malice it is a questioi wholly for the jury, who, even if they 
should think there was want of probable cause, might nevertheless 
think the defendant acted honestly and without ill-will, or any 
other motive or desire than to do what he bona fide believed to be 
right in the interests of justice— in which case they ought not, in 
my opinion, to find the existence of malice. It is an anomalous 
state of things that there may be two dififerent and opposite find- 
mgs in the same cause upon the question of probable cause— one 
by the jury and another by the judge— but such at present is the 

6. The recognized distinction between actions for false 
imprisonment and malicious prosecution should be carefully 
observed. In false imprisonment the onus lies upon the defen- 
dant to plead and prove aflfirmatively the existence of reasonable 
cause as his justification ; whereas, in an action for malicious 
prosecution, the plaintiff must allege and prove aflfirmatively its 

St. John, N.B. Silas Alward. 



The murder of Gonzales in South Carolina by that brutal 
ruflfian, Ex-Lieutenant-Governor Tillman, is doubtless in the 
memory of our readers. It is said that his acquittal was secured 
in the following ingenious manner. Shortly before the trial a num- 
ber of his agents went through the county where the trial was to 
take place soliciting orders for the enlargement of photographs. 
The head of the family was always interviewed, and, as an example 
of the work that would be done, there was produced a picture of 
Tillman. Thi.s was usvjd to bring on a conversation about the 
pending trial. The views of the po-sible juryman were thus 
ascertained, and. being carefully noted, were reported to the 
prisoner's attorney. This work was done so thoroughly that the 
views of the whole panel were in hi.s pos.session. When the trial 
came on those who were called as jurymen and known to be 
unfavourable to the prisoner were confronted with the statement, 
and, having expressed an opinion on the case, they were, accord- 
ing to United States law, ineligible for service as jurymen. A 
favourable jury was thus secured and the murderer escaped the 
hangman's noose which he so well merited. It will thus b- se^p 
that there are many things connected with the administration of 
justice in wnich our criminal lawyers are behind the age. 








L fl 

p£ r, £ W^ 





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i-H. I 

Canada Law Journal. 


(R.g,.«r.d in accordanc with th. Copyright Act., 

r. J r i^c^A\ I Ch 276 In this case a director ot a 

In re Bodega ^''- < '^of .^^^^^^ ,1,3 ,f association forfeited his 

joint stock company under the ^^^'^'^^ °' .^ ^^^ company. 

'office if he became interested m any contract with t J 

Wolseley. one of the directors of the ^-"'Pf /-""^^f^^ He con- 

^^•."-"^: Td^ctraTr cILdte: f^ractin,. and in 
tinued to act - f/^^^^^"^ .,1 remuneration for his services 

July. X90I ^^^^;l^ZSZ.^^^^ in the contract till tl.e end 
as director, ne commuw ^ ^2, 

.^^, At the eeneral meetings m jui>, i^-'i. «' ^ 
of June, 1901- At the gene February, 1903. h>s 

he retired and was re-elected to the board^ discovered. He 

,ecret interest in the contract o 9-^ was ^fi^^^ ^^^ ^^^ 
then ceased to act a» director ai ^^^^ f^,^ 

refused to register the transfer. =""™"8^ '^=;J^„„ for service. 
„,„ fees paid him, including *= speoa ' ™n„a , ^^^^ 

when he was not in fact a director. F""^'^ ^ " ^ ,„ ,he con- 
antoniatically vacated hi^> office on becoming. ntes«rf. ._ ^^^ 

tract, but his *«i-™f'"" "fht :':L«on,in]uly,.90., 
--" -™r het'h'r^ath" ';:"ef:ndan.wasnotentit,ea 
1902. were valid. He aiso nci airector between 24th 

.0 any quantum meruit for h- -"'- -,*7te company were 
December, 1900, and July «*, 1901, but t 

entitled toa,, '^^ P-^,'^:^.trw slS .0 ^ «eu they 



.... . ^-....^v S/^/«"/rfi004)i Ch. 289. I-arwell,J., 
he,i^;:t^:h:^r;u:,ees neglect .dre.^^^^^^^^^ 


English Cases. 


account, including the costs of taking and vouching their accounts- 
Hezvett v. Foster, 7 Beav. 348 ; 64 R.R. 98, which decided that the 
costs of taking the account should be paid out of the estate, was 
held not to be in accordance with the modern practice. 

AOmwiSTRATIOII-WiLL-FoREioN shares transferablk 


In re Clark, McKicknie v. Clark (1904) I Ch. 294, was a case in 
which It became necessary to determine the locality of certain 
personal assets. A testator domiciled in England by his will had 
appointed certain trustees, whom he called his " home trustees," to 
whom he bequeathed all his personal estate in the United King- 
dom. He also appointed others, whom he called his " foreign 
trustees," to whom he bequeathed all his personal property in 
South Africa. At the time of his decease he owned a number of 
bonds payable to bearer of a waterworks company in South 
Africa, where the bonds were payable. He also owned a number 
of shares in mining companies in South Africa. These companies 
were constituted according to the laws of the Transvaal and Orange 
River Free States and had their head offices in South Africa 
where the register of shareholders was kept and the directors met' 
but they had also offices in London, where a duplicate register was 
kept and where shares might be transferred. The testator's name 
was on the London register of the companies, and all his bonds 
and share certificates were at his banker's in London. On this 
state of facts, Farwell, J., held that the waterworks bonds passed to 
the " foreign trustees " and the shares to the " home trustees." the 
certificates being in England and the shares being also transferable 

CODICIL— Wills Act 

WILL— Unattested alteration-Confirmation by 
= 837 (. Vict, c 26) s. ji-(RS.O. v,. 128, s. 23.) 

In re Hay, Kerr v Stinnear {xgo^) I Ch. 317, shews the neces- 
sity for attesting alteration in wills in the manner required bv the 
Wills Act, s. 3, (R.S.O. c. 128, s. 23). In this case a testatrix had 
made a will on rst February, 1901, bequeathing many legacies 
'ncluding (a) £200 to C, (b> £^00 to M., and {c)£i,ooo to S On 
19th October, 1 90 1, by her direction her servant struck out the 
tnree iegacies. Sub.sequently, on 21st October, 1901, the te.statrix 
executed a codicil referring to her will as of 1st Februar)'. 1901 
and thereb) revoked legacy (b), but did not refer to the other two 

r m 


IP ;, 

a ,.j 



mrr^: .. 



Canada Law Journal. 


legacies, and concluded by ratifying and confirming the w.ll m 
other respects ; and it was held by Buckley. J., that only egacy 
(b) was rooked, and that no effect could be given to the unattested 

In Great Tonington v. Steven. (.904) i Ch. 347. the plairttiffs 
were grantees of land abutting on a river, but they had no express 
grant of the river. There was an island m the middle of the "ver 
opposite the property. The defendant took gravel from the bed of 
. the river between the plaintiffs' land and the island, but nearer the 
island. The plaintiffs claimed that by presumption of law they 
were entitled to the bed of the river and medium «>"- -f J^^* 
such presumption extended to the whole hver and entitled them 
to half of the island, and they sought to restrain the defendant 
from removing the gravel. Joyce. J., dismissed the ^ct.on. hold ng 
that if the presumption applied, the medium filum aqu^ ought to 
be drawn between the island and the plaintiffs' land. 
enaTBtteT-SALB to wholesale dealer with conditions as to sales by 


TO GOODS— Injunction. 

In Taddy v. Sterious (1904) i ^h. 354, the plaintiffs were manu- 
facturers of tobacco which they sold in packets, subject to printed 
terms and conditions fixing a minimum price below which they 
wire not to be sold, and containing this proviso: " Acceptance of 
the goods will be deemed a contract between the purchaser and 
T & Co that he will observe these stipulations. In the case of a 
purchase by a retail dealer through a wholesale dealer the latter 
shI 1^ deemed to be the agent of T. & Co." The Pla-tiffs sold 
o one Ritten. a wholesale dealer, who resold to the de endan 
Sterious & Co , who had notice of the conditions. The defendants 
nevertheless sold the goods at less than the -'-";"- P"^^ 
mentioned in the notice, and the present action was brought to 
^strain them from so doing ; but Eady, J., held that there was no 
onLt between the defendants and the plaintiffs wh-h the P U^ 
tiffs could enforce, and that conditions ul the Kina in ques ion 
cannot be attached to goods so as co bind purchasers with notice^ 
The stipulation that the wholesale dealer was to ^.deemed the 
plaint ffs' agent was nugatory in this case because Ritten sold the 

English Cases. 


OOIIM»V_WiNDiNG UP -Proof OF r,.,- 

/« re Safety Explosives f 1904) i Ch 2^fi xu .- • 
company in liquidation, havin^a lien on fh 7^ ^''^'^«°fthe 
the company filed a cl;^.m u ,. ^^e deeds and papers of 

Buckley, J., to L allowed to w^hdrlw^hr'r"'':"^^''^' ^^ 
claim as secured creditors 17 i . ^'"^^ ^"^ file a new 

J- granted the .^^l^^ ^^^.^I'T^ "it "'^""^^- »"^^'^y' 
Stirling. LJJ.) held thltTt' wl . '' °^ ^^P^^' (^'"'^'"^ »nd 
have l^n granted buton 11 . " ""'" '" "'•^'' '^^^ ^^ould 
the ground fhat the sol citors h^ T":'^- '^'"'^'"^' ^.J., on 
ence on their part but even ft^ Tri^*^ °"' ^ ^^^'^ of inadvm- 
parting with the deeds ^hout^air k'" ''' '°^^ '^^''- '-" ^y 
dator to their lien anW T ^"^ ^''^ attention of the liqui- 

agreed) that th^po^i^n :"%!:,?:' ':'' ^'''' ''''^^J' 
liquidator, had bTen alterel::ceT^;;-t^^^^^^ '''' ^'''^ 


ACTION FOR ACCOCNT-(^L e .ITs rr"'' """-'^"''-^ "UST- 

North American Timber Co. v Watkin. (,c^.\ n. 
an action by principals against th.i! Tr ^^^^ ' ^^- ^'^' "'^ 
the defendant pleLedThe S at J^^^^^ 
were, that in 1883 the Xintlff ^.m-tations. The facts 

America moneys for the pXelfrj" ''^ '"^'^"^-^ '" 
Lands were bought and oaToT ? T'^J "^'^'"'"'^ ^'^'^"^ '^"^s. 
plaintiffs, for thf firs" tfme d. .''t '"°"*^^^- ^" '^Oi the 

charged the plaintiffs morLtrT"; .''"' ''^ '^^^"'^-^ ^^ 
Kekewich. J.'held thaTtI dVf ^d^^f ''^" '^ ^^^^ ^"-''^ P^^cl. 

the money and the Statute^o?lS:tl:rwa:n:TS:er ^^^ " 

M.CTIOE-P.RT..S -BREACH OF trust-Repr.s.ntxt.v.s o. ....,, ,- 

action brought by a cestui oue ■ ^^ ^^' '^'^'^ an 

of the ,™..: of 'a ma" 4' ,e ,e::"„^S'°'■'""'''«^"""'''• 


Canada Law Journal^ 

„e. d«<.. Jordan died In .8S. ,„d L"^o„ in .S^ Th« had 
been no new trustees appomted m '™" P^ •""..„„, ,„,, 
against the executors on-d- -. '^e '^^^^%tZ. to 

of the ...t surviving trustee no. be ng -j^ - - ,^-;-"„t ^e^e. 

trustees having been W™""'''' ,*%""' °;',he trust fund in 
sented. and "<> -^''--S -he l«8al^,t. to he^^^^^^^^ 

as defendants. 

-,U-"T»rA««T..V EXP..S,.. "-S.""""' E"«" ■""•■ 

r. r. Kin, Trav:r. v. KM, (.904) ■ Ch. 363, » '«««<" 
aiiUhu't'^un.entar, expenses to^paid outo^^« — 

estate. By statute > -'«■" ''"•^■■"^^t " Thnu^stion'tas, 
settled bv will is payable by the executor. ^ "*= H 
J., held that it was not, but was cnargeaoic g 


^,.^« pbkparation for defence before 
00$T$-Tax/.tios-Costs before action-Peeparat.on 

WRIT-RULE .002 (a9)-(0"- R"" "T^^- 

i„ anticipation of the ^--^J'^Vvwl" and Judgment in 

prc^ured a '™f"'P' °' ^^ „PXi„g been dismissed, for wan. 
the previous action, ^he action nav.g t^,, „„der Rule 

-' rT?0°n"; tulT,^*; t^d'Sllf^ari entitled .0 the 
^s o7si mth^f ti^tlscript of the evidence and judgment 
as related to the present action. 

Reports and Notes 0/ Cases. 



Dominion of Canada. 


'^•J Tra VERS z. Casey. |\f«,.t, 

Perty—Construclion. ^ 

The will o» the Roman Catholic BishoD of St Tnhr, m t> 
tion sole, contained the following BenPrliH ,; 7°*^"' ^B- a corpora- 

all the church and eccScflTnH K M^^^'^P^P^"^ "Although 
are and should be vest^ in th^P "^"f ^'« P'ope«ies in the d^ :ese 
Brunswick, t "V^^Z :^^e^ eSutSn 'inT \ ''^ ^°^"- ^^'^ 
according to the intentions and purLes forThl »K ""^' '" *'"" 

established, yet to meet any Z^or mil» f t '^ *"' ^'^"''"'^ *"^ 
bequeath all my estate, real and persona? w^ ^ ^"^ ""^ ^"'''^ ""d 

Catholic Bishop of St JoSn New BrZ' *t'''''"'*""'*^^ ' ^° ^^'^ R°'"«n 
-ntennons for w^hich thiyt^ td !XtLt ished"" '" "^ ^"^^^^ ^^ 

privar;;o;e;:;i7the^^^^^^^^^^^^ T::i:r /^' ^•'•.^- "^> ^^^^^ ^'^^ 

in him as bishop was devised by th clause ^!TT\ T^""' ^"^^^ 
specific devises of personal property for othero.. '^T '''''' ""'^ 

construction. Appeal dismissed with costs ^ ^°'" ^'^ "°' ''^'^ "^ 

and£s;;rk'^.?L^tot;f:S: ^•^•' ^^^ ^^^^"^"^^- ^-^^-«.k.c., 


People's Bank t. Estey. 

[March ro. 

"answerea XMo, I have sold them to McK." £.. 


Canada Law Journal. 

,hen purchased a portion of then, fro. McK w o d.d not pay the owner 
therefor and he brought an action of trover aga n.t E^ 

Held, affirming the judgment ""^^ ^PJ^^Jjf, ^„J„Lro believe 

authority of the latter to sell, evidence 

/^./^, per Taschereau CJ., that as theowne g ^^^ ^^^^ 

"'t.trK.C., and C.r.,U, fo, .pp.».n«. ...-.„ K.C., .n. 
Gregory, K.C, for respondent. 

• f M^n.r^al called for tenders for establishing and operating 
The city of Montrea^^called tw accordance with spec.fica- 

an electric passenger ^'l^'^y ^^J'" "^ 1 contract with a company then 

rions. and ^-^^^'^^f^^^'Zt:X^^ "tend into adjoin- 

operating a system of horse tramways ^ ^g ^,^^,^ the 

ing muniapalmes. ^hc contract a^t ^^^^ 

franchise to the company for the Pe"^ "he companv should pay to the city 
A clause in the -"'-^^P^^'f^^^^^^^^^ Sept. .. 189., upon the 

annually durmg the term "^^^f;^^"' "'f.^m the whole operation of its 
total amount of us gross e«"'"g^ f "^'"« LcXvc\Ky or with cars drawn by 
said railway, either cars propeUed W jl ^ ^^«' ^ ^^^^,,, of 

horses." certain perce-^^^^^^^^^^ 

«uchearmngs from year to year. II distinction bemg 

.. X893, the company paid th 1^^^'^^^^^^ ,,^ ,,/ ,„Us and those 
„«de between their ^^'^"'"SS arising y^^^^^^ 
arising within the city, ^ut -bs^q"^^^^^^^^^^^ ^^^^,J, .^^ing within the 

except upon the «t'mated amoum of the g ^,,,,„,,ges upon the 


Si^:p;n^h^ gr ;f;n::i^ ^^-- -- ^- -"-°" °^ 

Reports and Notes of Cases. 


the tramway both within and outsidv of the city limits. Appeal allowed 
with costs. 

AtwaUr, K.C., and Ethur, K.C., for appellants. Campdeii. K.C.. 
for respondents 

E*- CI PoupoRE V. The [March 30. 

Contract— Construction— Public work-FindiAg of referees. 
The specifications accompanying a call for tenders for the widening 
and deepening of a part of the St. Lawrence Ganals which were a part of 
the contract subsequently entered into contained the following- "Parties 
tendering for the works are requested to bear in mind that no part of the 
work can be unwatered during the season of navigation, but that the 
water inay be taken out of the canal at the close of navigation when the 
work of widening and deepening the channel way to the full capacity can 
m the usual way be at once proceeded with ; otherwise the work below the 
surface water line must be done by sub-aqueous excavation." The con- 
tractor for the work claimed payment for extra work and increased cost on 
account of the Government refusing to unwater during the winter months 
Held, that the contractor might be called upon to work under water 
during the time the canal was closed to navigation as well as when it was 
open and was not entitled to extra payment therefor especially as no 
demand was made for unwatering. 

The contractor was entitled to payment at a specified rate for removal 
of earth and at a higher rate for "earth provided, delivered and spread in 
a satisfactory manner to raise towing path where required." He claimed 
payment at the higher rate for over 200,000 cubic yards, the resident 
engineer returned 69,000 as falling under the above provision and the 
Government allowed 23,000 yards. The Exchequer Court Judge referred 
It to the registrar of the court and two engineers who reported that the 
amount allowed by the Crown was a sufficient allowance and their report 
was confirmed by the Court. 

Held, that the Supreme Court would not overrate the judement of the 
expert referees. 

Other clauses of the contract required the contractors to make and 
repeat their claims in writing within fourteen days after the date of each 
monthly certificate during the progress of the works and every month until 
adjusted or rejected. By the order-in-council referring the claims of the 
appellant to the Exchequer Court these clausese were waived " in so far as 
the repeated submission of claims is required." 

Hf!d, that the waiver did not relieve the contractor from making a 
claim after the first monthly certificate issued subsequent to it having arisen 
but only from repeating it after the following certificate. Appeal dismissed 
with costs. 

Aylesworth, K.C., and Christie, for appellants. Chrysler, K C for 
respondent. » ••• 






«f " Kj 

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y£ 1^ 


^^ 1653 EosI Main Street 

y,S Rochester, New York 14609 USA 

^= (716) 482 - 0300 - Phone 

^= (716) 288- 5989 -Fox 


Canada Law Journal. 

province of ©ntario. 


[Jan. 25. 

From Divisional Court.] 

Hogg v. Township of Brooke. 
Municipal corporations- Hr.h^ay-Snow drifts- Temporary side track^ 

""""Z^ in' ravening on a highway in l^;^^:;^-^^^^^ 
a team of horses and waggon came to a p ace where U^e road ^^^P ^^ 
sable on account of drifted snow for more ^h^" haU a mue 
the road between the ditch and a ^^f J^^^/^^^^o Ta't^Tand the snow 
by the travelling public which was safe ^^'^^tittcLr^^^c.d. three 
was hard; but a thaw was m progress, ^hich had con 

days before. When those in the ^^^^°^ I'^^f^'^^^^i^^^^ upset, 
horses broke through, and the ^^^f " J^^J^ .^^f by one of t'hem' 
Plaintiff got out and in assisting the horse ^^^^^^^^l^ X^^ defendants 

was out of repair and that the P'*'""" ^ C T , and MacMahon, 

Judgment of a Divisional Court (Meredith ^0 m a 

J.) river'ng the Judgment of FalconbribcjC J. affirmed. 
Shepley, K.C.,and>/4« Cowan, K.C., for the appeal. 

K.C., contra. 

[March 4 


Meredith, C.J.C.P., Maclaren, J.A., MacMahon, J.] 

Rogers v. Marshall. 

Lnaiiei. s s subsequent statements. 

1 ^»r matter between an execution creditor and a chattel 
In an interpleader matter between a renewals of a 

mortgagee of the e"-^-"^^^'";;^^ I'd^,^^^^^^^^^^^ the first renewal 
chattel mortgage was questioned on the g^o^nti ^^^^^ 

3.tement shewed all the Pa^^^^^^^^^^^ .,, .,e total 

:irdt^;.tt;eS statement and did not repeat the payments 
there set out and credited. 

f^^TL second Division Court ot .h. Coun., of L.™b.o„ 

Reports aytd Notes of Cases. 


D. L. McCarthy, for the appeal. Riddell, KC, contra. 

Boyd, C] 

L'. [March 22. 


compelltn^ attendance. 
R.S.C. 1886, c. 140, extends to parties as well as witne«^<= ■ , a 

^. i%x>J/«, K.C., for the motion. Beaumont, contra. 

Cartwright, Master in Chambers.] ... 


^./«'.«..-/>..^..,,,„ of n,,mberskip roll-Recreation clui>- Revocation 

of charter-Common betting house. '^''""'""'" 

In an action against the defendants for a declaration th.t .», 

usmg their premises as a common betting house contmv^o^h ^^ "'■^"' 

ot the Criminal Code, 1892. and for a revoc'ion o heir'cha te^ '"^"°"'' 

.emrhir?:„'^of th:tb\.i.ti^,H:r r ^°-" "-- the 

against him ' " ""^^^ '"=^^ '° ^ ^'■™'"^1 prosecution 

nivryw. World Newspaper fiSo?") r? P R ,s^ „ ^ rr , ■ 
(i9oi) I O.L.R. 659, followed ^ ^ ^'""'^ Hopktnss. Smith 

Meredith, C.J.C.P., MacMahon, J., Teetzel, J. ] f^p^.., ^ 

Rex t'. Fraser 
Certiorari-Insufficient return-Annexing papers 


4 - £i 


Canada Law Journal. 

province of "ttova Scotia. 


Full Court.] RKO .. B.OELOW. LMarch ». 

Liauor License Act of ,886-SaU in violation of prov.s.ons^ Evidence- 

Conviction affirmed. 

t Tn ro whichThey used as a bonded warehouse, but the ev.dence showed 
IT the oTd r in quesUon was filled, not from the bonded warehouse bu 
from an open case in defendant's cellar, which was kept therefor that 

^^"^mid that the evidence shewed a sale by defendant and that the 
appedtm 1 JuVgment of the County Court Judge for D.stnctNo4 
affirming the conviction must be dismissed with costs. 


Full Court.] Cape Breton Electr.c Co. .. Sl..vter. [March 8. 
Electric Company-Obligation to supply meter reading to consumer-Bur- 

den tosieJcompliance-Ofer to compromise-Not a wa^ver of r^ght 

under statute- Payment of pt evtous bills. 

The Dominion Acts, 1894, c 13, «■ 13. sub. s. 2 enacts that "When 

everfreading of a meter is taken by the contractors for the purpose of 

estabUshing a charge upon the purchaser the contractor shall cause a 

■ duDhcIte of such reading to be left with the purchaser." In an act.on by 

fhTpSntiff cornpany se'ekmg to recover for electric lighting and rent of 

"''%/rf 1. The burden was upon plaintiff to shew compliance with the 
Act fnd that non compliance was not excused by the fact that the person 
to whom the duplicate reading was required to be delivered might not be 

able to -'^-^-^^j^-^p,^,.^, ,,de on the part of defendant could not in 
anv sense be treated as a wavier of the right conferred by the statute, 
any ^^^^^f^'^^^^^^^^^ j. ^he fact of previous bilUs having been paid 
could not be taken as dispensing with the requirement of the statute for 
more than the particular bills paid. 

CF. Fuilerton, for appellant. H. Mellish, for respondent. 

Reports and Notes of Cases. 


.he "CV'or„Ma'lVa t^Arr! "'"'' "'' "" -P»«-d for 

Coun,y of Cap. B,e,on.'a„dT':,Vp3'ai°CLT ""' '";"' '" "" 
able to the owner of snrh l.n^ u ,/ . ^^^'^^^S"' 'f any, pay- 

Objection was taken to he awad 'of dat " '^T'"^" 'y ^'^^■■'«'i^" 

one of the arbitrators a ^ed u derTVc: f r'n-^'" ^^ "- 
party he having been assessed as a ratepayer in'he t^wn " ^ "^'"'""'^'^ 

«r/< dismissing with costs the appeal from fhTT' • • 
SHEN'D. J., refusing a writ of certiorari *^'""°" °^ 'T^*"' 

app.i^;^;L:taofr"r:^r7'"^^"''^'^''^^p^^''^' ^- 39r.s. 

objection to the award made by C ' "'''''" "^"'^'^ '" ^^''^ 

or c^ti^:: i:^ ^ot ;^r r:^:°r ;;:^ c ^ ^"''"^' -^^^^^ ^ -*• 

them. ^°'^ '"'° ^*^'^ Court any award made by 

/^ Mclnnes, K.C., for apriellant. IV B A /fit u- l- r. 
i?^-}^r/.^«, for respondent. '''^''' '^•C' «"d T. R. 

Full Court.] REX..COOLEN. .^ ,, 

Ha.iStt;z:s.r^ t ^r^:^ ^^-^'-^^ - ^^^ ^^^^ ^^ 

J. F., causing bodily harm, fhe ac ^ed Linr'"'"' "'] "''""" "P°" 
summarily in accordance with s 78, nf rh r T^ ^""^ented to be tried 
of a common assault only ^^ ' ^°^' ""^ '''^^ ^"^ <^onvicted 

comf ::'a:;aururdir1't:^^^^^^^^^^^ ?^ T"-« ^o -Vict of the 

for an indictable offence uide;s las S^^^^ ''^^^'^^ '"f-"-''- -^s 
assault. ' " '^"^ '^"e'' section includes common 

being' th?o:.r.rd::ed::;i?potjr'^^ '° *f---s. ..counts- 

where it is provided hlt'L eCelions'." V"'""^ 

respectively include informat on /nT "'"dictment" and .'count" 

also any /ea, rephcatilr rr&^d^r;::;:- ""^^^ 

I C.C.R. 154. ^ •'• ^■^' "' ^"'^ ^-^^ ^«'^« V. Taylor, L. R. 

^w/i^-, for appellant. aHearn, contra. 



Canada Law Journal. 

\ I 

Fun Court.] REX ..Gaul. . LMarch 8. 

Criminal Code, s. 55-^Punish,nent of child by teacher. 

The Criminal Code, s. 55. authdrizes parents persons in the Pb^^ °f 

parent, school masters, etc., to use force by ,.ay °f. ^°'-'-«^"°" °7;.t the 

chid etc., under his care "provided such force Y^^^:"f ^ "t" ^ 

. \,^c''h„thvs -8 " everyone by law authorized tc . lorce is 

of the city of Halifax for assaulting, beatmg and .11 using J. O., one of the 
puius under his care, and was acquitted on the ground that there was no 
evTdence o? n.alice on the part of defendant or of permanent injury to the 

''^^eld t The only question properly before the Stipendiary Magistrate 
«.s ^lier the puni Jhment was reasonable .nder the circumstances, or, 
in other words whether there w.s excess ^^ ^^^ ^^^^ 

1 There is no warrant in tne <^oae tor mc icai o-vv 

that his act resulted in permanent injury to the chud. 

W. A. Henry and R. T. Murray, for appeal. H. Mclnnes, A. c, 

Rex v. Bigelow. 

Licu.r U:.n„ A., ,/ ,m-C.,.Mi"> «lor,hird cpnc-U., of frn,,- 
eus convictions to establish. 
Previous con.ioioo, may be used as evidence "f^"^"^^^"^^^^ 
coviction to, a third offeuce agains, the prov,„o„s of the L.quor 
Z as often as such ai. offence is charged and proved. 

„ i. nm „o« necessary under the statute (s. .3t) to ask the defendant 
.hethe h"e Ls L:r Je'iLsiy co„v,c.ed uniess he ,s present ,n person 

Where at the conc'.usion of each of several cases tr,ed Ijefore h,m the 
J^^ .0 convict, but at ^^;^-;^^^:,ZSl 
r;;1 "u" rS^Ju^ -"- -- a^uestion raised on 

'" 'S^rs^;:: :*:::"r:::i:r,uash and ordering a ^ 

p,oc2fio,."arthe',„agistrate was not precluded trom w,th 
the convictions at a later stage. .k <; 75 

/ A. Chisholm and H. T. Bigelow, for motion to quash. S. D. 
McLellan, contra. 

Reports and Notes of Cases. 

3 '7 

Ritchie, J. 1 „ 

Criminal Code, ss 2AI ,t\- f.^^ x , L-^"arth 21. 

^>4a//.;,^... '^^^<'"l'-Mot,on to quash refused- Peremptory 

Cod7on^to:;tt:;^ar^^^^^^^^^ ^^. -^^ -^ ^^5 of the Criminal 

the .3th day of Novembe '„ h.^'^ "' '?'' "= '" "'« ^^''^ °*" "»'*'a^ on 
hundredandthree, wtht;n todV" "^ ''°''^ °"^ '^°"^«"d "'"« 
J- Weatherdon, did u law ul" Itnftr" ^ 

and (.) for that he did inlhe dty of H.l f' "''\' ^^^'^^'^ J" ^^eatherdon, 
in the year of our Lord one thol° . 1 °"h'!.'^'' ^'^°' ^°^«™'^-^ 
assault one Thomas J. Weatherdo^ Aft ''^ '"'^ ^•'^^'^' ""'=^'*'"""v 

ing to the indictment, the pr! one., ro "^^'^"'"^"' ^"^ before plead- 
ground that the Clerk of ti!e c Zn k ^ '"°'''^ '° '^"''^ '' °'"' '^^ 

the prisoner's prelim narvexam?nr. f T' ^^"' '^"^ deposition taken on 

of Halifax, as' requireTb s t^ ''' '""' ^"' °'^^^ """""^y 

was being worn the prisoner H \ u' '"""""' ^■°^«- ^^'^en the jury 
lenges on'the groundV anhes Its h r ''' f ^'"^^" P^^^'^P'^^ ^i^^' 
for a felony and misdemeanor re rtt^^'^ ''°'' """''^ ^'^^^ ^^^^^ 
Criminal Code abrogated^ cor^^ril!' '", '' '^ ''' ^'^ ^"^ ^^> ^^ '^'^ 
was ^ .eabov^ .,,,^ Sm g a:r:n t m d^ ;^;.r--^' ^« 

!!' '• ^'"' '"'I'^tment was properly found, 
attw^vl':^;^:-;;:::^-';;^"^-^- s. 668 of the cnminalCode 

the first count o? the indictmen; U nl I ^'^"' ""'"''"^ """"^^ ^im on 
add a count for common a^sa^Unnrn' "^^^""^^ ^or the Crown to 
offence .f the evidenceXamed It ° ''' ' '^°"^'^"°" ^"^ '^at 

^^^The prisoner was the. tried and acquitted on both counts in the indict- 

prisofer.^ ""'''''''' ^' ^^ ^^'^^^ ^- '^e Crown. y.,„ y, ^,_, ,,^ 


Wallace, Co. J.] Re Mvers .. Murrans fU h 

Zandtord .nd tenant^O.erHoldir., Tenant's aI R , ^ ''• 

^'-'and/orpossessionheldiad/orurera^^: ^ V '^' '^ '^*~ 
ing- Writ of possession refused "'''''^''''"'>'-^-^"^'»^' of overhold- 

An application was made br th*. i,„^i a r 
against the tenant under the 0^^^^:^^^^^:,^^:^:^^- 




Canada Law Journal. 



based on the following demand for possession, which was served on the 
tenant on March 9, 1904 ; Halifax, N.S., March 9, 1903- 

Lawrence !>• M""=i"S'^*^',.i,„ 
Oottingen Street, City, 

Dear Sir,- . „,^ •„, Vq 04 Gottingen St., Halifax, N.S^ 

^r '^M^nrch is' iS You a?e h'Jreby nmified to deliver up sa.d 
expired on March ist last, 
premises to me forthwith. ^^^^^ ^^^,y j. e. MveRS 

March ., 1904, or May i, 1904. ^^f^^^^^' " "e tenant a three months' 

landlord had on the ".'/-^-"J^ly hel^e -^ °" ^^^ '• ^9°4- On 
notice in writing to quit (""t caUed for by ^h e ; ^^^^ ^^^ 

rrS XVr te ire^March .. .o4. of the above 

and under all the circumstances following ^../a^^^^^^ ^^^ ^^^ ^^^^^^^ 
S^^tf^r tr;:^:^- ^-^ of the Act. the aoplication 
^'°"^^JS./trnd W. S. Gray, fo^.ord. Jo^n J. Fo..r, for tenant. 

province ot "Wew Brunewich. 


Ex PARTE Vancini. [Feb. 5. 

En Banc. J «.-,/.v,/*r t*t eities and towns— 

with reference to the 3"/'^**'"'°" ctioendiary or police magistrate is 
criminal cases: "Each and -".^^/fl^^^n'd is hereby dec^^ 
hereby created, declared and constituted a ^o i,^ ^^^^ ^^^ 

to haJe always heretofore l^en -- u^d^^^^^^^^^ ^^^ /^^,^„^, ,, 

jurisdictions which any Act of the ^"''^^ ^^ Canada purports to 

„,ay confer, or which any '^^^^^f^^^fj^'' 'i3,,,te within the province." 
confer upon any stipendiary or police magis ^^ ^^ 

In 1900, .. 785 of the Cnminal Code which emP ^^ ^.^^ ^^e 

Reports and Notes of Cases. 


exercise judicial functfons."' The aonrof ?' '"^ '° ''^'°'^"'' "''"'^ '^ey 
the police magistrate of Freden^ton S^^ k'°""T^ '° '^ '"^'^ '*'"°« 
value of $,cx>. pleaded guilty a, dw^, . !;^' °'^''""""S ^""'^^ °f 'he 
«"ent in Dorchester I'enitemia^J^ ''""' '° '*^'" y^**"' '"^P^^'O"- 

of the application tha? it was not ^o. ^ T^ ^"'" "^^ed in support 
functions of ti.e provt^^ aMeJsI t "; wi;"h'r'r^'''''"" '' '^^ '^«"'"»"- 
provincial courts), and that the en"". ".'""" '° '^'^ jurisdiction of 

wick the amendment of ecVmrrSd""K' '^"'^" '" ^^'^ «"- 
cont^ded was ultra v.res or .^'Z!^^:;^^^^^^' ^ it was 

Of the /eacet NerBrtsltk 'a'n^ th^t "° ^"""^ °^^--' «~ 
charged in New:Brunswick wX ' "ft .!V° P'"°" '*^""^°« '^""''^ ^^ 
a Court of Gene'ra, Seslions nh"e W" t?'"' 'T^^ '^^ '"^^ ^' 
mentof .900 inapplicable to this prolce and th^t T" ''' '""'"^■ 
construed by reading into it the word? "'vk ^^ '^''''°" '^ ^° ^e 

Ontario." ^ ^"^ ^°'^^ '^ ^e were in the province of 

Application refused., for the applicant. Barry, K.C.. for the Crown. 
En Banc.l p„ „ T 

y^rr^f/ J* • '^ '^'^'^^^ Porter. ,^ . 

^'*'itre to shew jurisdiction on its face 

Victoria." The„oLesu,edl, .f/„rV° ''"' f" "« <=-«> of 
heard a, Andcver, i„ ,he coum/if vL«S " °' '''^''"«' "'" '^ I* 

Car/^r, in support of rule. Lawson, contra. 

IPropmcc of flDanitoba. 


Full Court.] Towx OP Emerson .. VVr,cht „, , 

^"nicipal corporation- Re ', r„^.f r -. I March 5. 

•t ! 

Canada Laxv Joiirnal.^ 


A TK- Mnniciual Act and otherwise should be vested 
that such powers under 1 hc^^ "'»^'P»' ^'^^^^^ ;„ Council, and 

in a receiver to ^^^^^^^^^^^^^iT^^ the .--.e of such 

that the rece.ver should ^a^J P?;"^ ^ ^^ ,„d Council under sa.d Acts, 
by-laws as might be passed by the ^;'^>°;^? -^ Council. I'-y 63 

the same to be submUte.' to »^^« .^^^ ^t^l^:^^ ,n Counc.l 

& 64 Vict., c. 32, it was provided that ^^^Z- ^'; ;';";,^^^i„„ ^f ^hree persons 
n,ightbyorder-in-councilappo.ntorp ov^deforthe^^^^^^^^^^^ ^^J^^ ^^^^ 

to act as an advisory ^^^J^^^Z^^^^^ order-uvcounO was 
powers of such board. I ursuant o i ^^ ^^^^^ 

passed appointing the members of •. ^^ a^^uso^y ^„ ^^^ duties 

Suties, one of which was '" P^fj / ,»" 3 1' of ^he Mumcpal Act. 
vested in municipal councils unde the prov transaction 

They were also required to meet at least once » "^""l'' ^ ^^^ 

and ratification of all business ^^^-^^^^^ eTen^^ure ofX ::,one>s of 
the receiver and authorise and ^"P"^';^" '^;^7^he town appointed under 

the town. The defendant was the X" /d ^^7Jd j/^ebruary, 190.. 
c. roof57V.ct.,andactedassuchunnh .a^dism^.^^^^^^^^^ 

when W. W. Unsworth -^^-PP^.'^^;/;: J us receiver, for an account 
in the name oi the town and W . N\ • ^"J^""'' defendant whil. he was 
of moneys alleged to have been ^^^^^^/f^ '^oaid over On his examina- 
receiver of ti.e town and "°V-"°""^^'^,'^°: !" J^'^d t at he had not author- 
tion for discovery the plaintiff, ^n-orth, admit ed '-t ^e^ ^^ ,,, ^^^^ ,,, 
ized the bringing of the action, and »he defendant t ^^ ^^^ 

referee for the dismissal of the action or for ^ f ^J ?\P^'\^,hority of the 
ground that the action had been <^^^^^f:,t:\.^:,:\ retainer was 
plaintiff or either of them. On the return 01 i ^^ 

produced, signed by Unsworth in the "'''^/."f^.^rfhe solicitors to 
receiver, and sealed with the corporate 'f^'^'^^'^^oT-r it, and all 

prosecute the action, and -''^^'"8' ^""'^^""l.'^.twS^^^ 

things done and proceedings taken therein. a.d ^^^^-^^^^^l^f ^^ ,,, ..^^ 

been brought with the full knowledge, -"^^ ^ ^^;:^;^ J\hat this did not 
town and of himself as such receiver. The retert n ^^^^ 

shew sufficient authonty to sue in the name o^^^^^^^^^^ 
the name of the town be struck out °f ^^e a«.on D ^^^^^ 

action or stay the proceedings as authonty from Lnswo^ ^^^ 

T ''''i::T.:^£:tT;.^^::^sr^^^ a resolution 

appeals came on to De nearu uic v <^ ^c .u^ rpferee's order and con- 

oUhe advisory board passed after the date «/ .f / ^f ^^^^/ferrns as that 
taining a retainer and "-^''-''T^''''r ^^,^'J2 Z ^^^' ^' ^^« ^°""- ^^ 

r^:r s "- " ^^ -^^^^ -"^ - ''-' ^" 

whole matter might be dealt ^^y^^;^ '"'^^^^/J;,^;^^ ,^^ commencement 
H.IJ, that a municipal <=XTh" coroUet a nd that a formal by- 
of an action by resolution under the corporate stai a 
Uw is not necessary : Tou>n of Barn. v. W.aymouth, 15 P-R- 95 , ^ 

Reports and Notes of 


."3 1 

H«i::r;;kr;i:;.tts::',rj;^ >-» -. <,„ „„ ,„„.„ 

^ull Court. 1 c, 

J Stark z/. Schuster. ,„ , 

"^""^^ "/ ^'•^r«Wj/ Legislature- H V ^ . ' ""^ 5- 

S^ops Regulation Au'JiT^' f-^f-,f\'^^7, "• ^' -^ P.- 
/PO., . „6, s. 5^7~Winnierckaref~l^^^^^^^ 
''"''"-Bylaw requiring closi J of T! ^ ' '• ^7, ^. C?/ ^^//^^ 

closed after six o'clock p m e, '1 T ""'. ""^'"" -"Uptons to be 
question • passed in Tulv ,non \ \ ''^''^'" ^*y«- The by-law in 

came ,ntc force March 6, ,903. in M./f °^ '^^ ."^S' -^'- ".c, which 
came into force and the neVM.;^',;?; '^°'' ?' ''''""''^^S <=harter, 
conra.n, a clause (,a. providing th h'e c ^ ^f wf ^.^''^^'--■"••. -90.. 
'" he txpress>o,> " n-unicip.lity " where th. "'''" '^ "'" '^^=-^'^^'d 

Section >5 of "The .Shop Re.u Jion x^ ' '^'"' """^■'' '" '''« ^ct. 

passed hyamunicipalcouncil under he. «h T'"" "'' ^ '>' ^y'^^ 
passed under and by authority of fheM nil. a '^ ^''^'^ '" ''-- '-e. 
sccfons of the Act had formed part o "7 A ' "' "''' '"^•^^^'"8 sect.ons of the Act und the VlnL ,'""''' ""^'^ "^"^ '^'^^ 'he 
construed together as if forming one Ac, ' '"' -^^^ ^'°""^' '^« -^^ and 
the defehdant that the present bhous Rel' ,1 ' '^^"'ende-' on oehalf of 

C.ty of Winnipeg by rea'son of 'tsTeiLl ' " -'^' '°" " ^' -PP'y to the 
-n the Municipal Act, R.S.Af ^r/ " ^^''f '^ ^^^°^^ "^-""°ned 
excluded from operation in W peg ' "^' ^'^''^^ Act is 

-p'"^ '^^:.^:^ t:^:^:sri "- ^-'-^- -^ 

Charter and s. 527 of the Munirioa a '' ^^' "''"'" "^^''^'"'Pe" 

''il by-laws of the c.ty theretofore la -^ullv n '' T"" ""^ '^^'^ ^ ^^-e 
question was in full force and effect ^ ^"^' ^"*^ '''"^ '^<= by-law in 

'-^^^^^^^^i:X^:£^-- the powers 

unaer which it was passed, its pro- 

1 ;; 

• I t ► 

Ciindt^ii Laxv Journal. 


II if 

,^2 2 _ _ 

w „«. »«. held to he unrcasf.nal.le. un. ertain or oppressive, so 
visions could not \rt held to nc . rV;///-"-) tr.. 

J'rovu.rial Legislature under s 92 "^ ^^"/^ ,^e nature m the 

S. o^'inSred^^. Trad. .„d Co,„,„«c. ,o a ,„a,„ ex,.„. .han 

the Shops Regulation Act could do. , 

^J;«<,, and /WA, for defendant. /• CampM/, K.C., and A. J. 

Andrews, for the City of Winnipeg. 

Fu«Co,„..l A,K,»s .. A,,....N. ,, /^'"=^^- 

IHfendan, replied .hat . was and . the F- «' » *■ „^„, , ,„ 
was said about a I It then '"^;°'?"'^^^^^^ .^^^ purchaser 


""" S'VtrrXdi-nUntX., under .he c,rc„n,s,ances. 
M(ia, reruuc, j., o amount ot the usual com- 

„ereen,i.,edon.,uan.un,m„„,, o he ^JJ amon^ ^^.^^.^^_^^^ 

r;;^ "s '"^'p , Ind S.« V. >«.-»■*. 3. O.R. 43S, follW. 
The mer . ha. the agent has .ntroduced the purchaser .o he 

Reports and Notes of Cases. 

Appeal dismissed with costs. 

^oi'son, for pla.nt.ffs. ^..„,,,,, ,,, ,^,^.,,j^,^^ 

Herdue, J. ] 


'*90, c. jj, ss. 2g, 38. "' "/ ^'■^f^i't'ig'' ^Ict, 

to have l>lllliVby thTd!.fcndan's '^^^ ''^"'"'^^""-y ""'es ,...rport,ng 
Kiver Trading Company ad t' J '''^^ !" •^"-' "^''«^'>f '»'e NV-nnipcK 
during .urrcnrv. Th^, L^nLl? .TT'^ '" '*'^' '^'^''"•"'^ '""^ va^ut 

read ^^"Miish/ n„.':f'^r:'ruir:rr'r '"'^' ''""^' ^^ -^"^ 

English. f.ut only such as Juld be u d on' th"';"' "" ^'"^ ' ""'- 
with farming or selhng wood, l^e othir t«n r' T °^ '" '—-"on 
or understand Knghsh and could norwne",h' "'^ """ "°' •^'^-'' 
'^y i;- H. Cornga-.. the nunager of thl adin. co" """'"''' ""^ """*=" 
mark. Corrigan was the only witness wh^i;'"'*'"/' "'"^ "''^ -"^' >< 
-gnatures. The defendants desired to obtain h "T '° ^^"^^ '^' 

lands upon which they had squat'ed ..^H k . '"'""'^ '"'''*'' '"^^ the 
"umbered section not available for h" ' ""'' ^"'' "<■ -" -<id- 

assistance in endeavouring o induce JhT?'" ^'' "^' "'^' ^"^^'^-'^ 
regulationsthattheentries\°grt t; de ""r""""" '° ^° '"°*^'^>- '^e 
to do this for the defendants p'ov ded they woulT" T" ''^' '*^ ^^^^^ 
case he was successful, and that the rLlc , *''''''' ''^>' ^"» $'^5 in 
pursuance of that und;rstand ng a,^" h, h" °" 'T" '''''' '^>' ^''" '" 
entries for defendants before th^ . '"^■^'^'-''^^d in obtaining the 

admitted that thev h d agrtd to -i^ " """"'''f' '''' ^^^^^^nt 
obtain their homestead entries f«? them VT'f" ^"' ''''' '^ ^^ -°"'d 
to be paid in cordwood. to be de ivered ■ ' '"' ''^ ^'""""'^ -"e 

car-load to be delivered each ^v^n'rt ""'^jo and three winters, a 
become responsible for the liability of the oThe'rs ''"''"'''"'' '»^^^^ '° 

At the time the notes wpr*» c.„r,^^ . • 
also to sign and swear to aSdavt;;ep:::dTvr""' ''" '^^^"^^'^ 
their applications for homesteads fnH h r J ™ '" ^^""ection with 
knowingly signed any papers otheMhan .v'"''"'' '"°^^ '^^>' ^ad not 
trial judge's finding of^a'ct wa!f 1^;:? d '" '°""'^^'^^- '''^^ 


Canada Law Journal 

Prior to the coming into force of the Bills of Exchange Act, 1890, c. 
33, it was well settled law .hat if the signature of the matter of a lote was 
obtained upon the representation that it was a completely different docu- 
ment he wL signing, and if he signed it without U was a note he 
was signing, and under the belief that he was signing --^'^-g f ;« ''"^^ 
if he was not guilty of any negligence in so s.gnmg X, he would not be 
liable even to a holder of ihe note who acquired it durmg Us currency for 
value without notice of the fraud. .1 „. ;» 

Sections 20, -j8 of that Act have made no change m the law, as is 
shewn by the case of Lewis v. Clay, supra, decided in 1897. since the 
coming into force of the Imperial Bills of Exchange ^ct, which contains 
exactly the same provisions upon the subject as ss. 29, 38 of our Act. 

Action dismissed with costs. r j r ^ »»= 

Haggart, K.C., for plaintiffs. Rothwell zr^d Johnson, for defendants. 

province of Brttiab Columbia. 


Full Court.] Rex v. Tanohe. [Jan. S- 

Ctrtiorari-RuU nisi to quash conviction- Motion for-Jurisdictton of 

single judge to hear— Practice. 

Motion for a rule nisi to quash a conviction. 

Held that the full court will not hear a motion for a rule nisi to quash 
a conviction ; the motion should be made to a single judge. 
C. C. McCaul, K.C., for motion. 

Full Court] Traders' National Bank of Spokane v. Ingram. [Jan. 5. 
Appeal- Notice of- Court at which appeal should be brought on-Supreme 

Court Act, ss. 76 and yg. 

Motion to quash an appeal on the ground that it was not brought in 

time A final judgment was pronounced and entered on 27th February ; 

notice of appeal to the January sitting of the lull court was given on 24th 

October. A sitting of the full court commenced accordmg to the statute 

on -ird November : ^ , j ..• .u-» 

Held, per Irving and Martin, JJ., Hunter, C. J., dissenting, that 

the appeal was brought in time. 

W. H. P. Clement, for the motion. S. S. Taylor, K.C., contra. 

Book Reviews. 

Booft 1?et>iew0. 

Oxford: At the Clarendon Press Londo'' v,^' ''^"'^^-^Maw. 
Un.vers,ty Press Warehouse rrnenCoter "T/--<1«. Oxford 
L'mued, x,9and "o Chance^ W- i^I' " * ^°"'' 

preparation of the fifth. Since ^he k.; '^'j- "^"^^ ^^^ '"fusted with the 
have taken place, such as heV hL',! bt'd "^^1 '"^^"^"^ -<^'«' 
conference; various incidents in the Snani H a ^^- ^"P"'^'' '*>« Hague 
" South Africa; events in Japan and ?hn '"''"""' *"^ 

the present addition, and add largelv toTh. f r"" '°"*=^«^ "?«" *« 
governing States in the relat-on o7?^ '''''"*' °^ "^« ^o^k. The law 

present time, as well as he alor's on ' " "^'"^"^ interesting at hi 
or which have arisen in this co„Lr?f V" '''' ^""''°"^ ''^elyfo Iris^ 
territory by a belligerent Is a hZS ' ^°' """P'^' '^e use o? newr^ 
g-en to the land or nava forceTof a k'^""' ''^ ^^^'"^ *»>-h Ty £ 
bana of and the generinoIl„ r'"'' ""' ''''"''■°" "^ ^°"'"^ 
wthin belligerent jurisdiction e^ It u "'"''"' P""""'' '"^ Property 
than call attention to these' dstm/J %^""' """^^^^^^^^X to do mo e 
as the work is so well know" anf ' tc^Sr °' k'^ P'"«"' <^<^'''- 
There will doubtless be a v! , ^ ^^^X'-here as an authority 
the present time. Its "al^e isl^gl^^t^^^^^^^ « ^^o, I 

The work Of the publisher and the P^ra;r:rc;trsJoTthet:r ' '"^^^- 

Fc"er Lane; Butterwo'rth & S', rB.^rvt ^ f,o7 ^ ^°"»- ^ * « 

% ^n t;^^!t;r;;:t r a^rS ^r ^'- '^ --- a neces. 
that branch of the administration of Jus ice itT^ '° ■'" '^"""'^d '« 
gradual development of criminal lawTn "f./ '"terestmg to notice the 

f i 


Canada Laiv Journal. 


r I' 


flotsam an^ 3ct0am. 

justice Byrne, . ^^f^f^l^^l'^^ If the Chancery bar, 
he public. He commenced ^^^ career as a ) ^^^ ^^^ 

became afterwards a ^f ^^ !";^^; ,^°Sance^y Division. It .s said, that 
subsequently appomted a judge of the Chancery ^^.^^^ 

: 3udg'e of his ab.Hty and ^^lZf:^::,t^r^:^> - irreproachable 
r^ctrand^unE tacrandtuLy. a^d . this was added, the more 
solid auributes of an extenswe kno^e of law. 

The late Lord Colerid.e ^as once spea^ng^^^^^^^^^^^^^ 

in support of Women. ^'S^-^^^ne of h^-^-J^^^, ,^„.„.„, .„,ellect. 
wasnoessent.ald.frere. eh n^een the ^^^^^^ ^^^ .^^.^.^^ 

For example ^e ^-d: QuaU es of_ ^^^.^.^^„ j„ ,,piy 

sensibilit>s quickness, and del^a^y P^ ^^^^^^^^^ ^^^ ^^^^^^^ „ 

re;rpXi;-e"am"Lstot^^^ i^^^es are old 

women ?herefor. all old women ar^o be judges. 

we are rather inclmed -y;npa.h.e^^^^^^^^^ 
decisions were frequently reversed by the Supj^^meCou ^ ^^^^^ ^^^ 

he possessed no exalted op>nvon of ^^e Matter X ^^^^^ ^^.^^^ 

,,oSght before him, ^^"f^^f .^^^ ^^n 1 avt"mmed.ate notice of appeal. 

was duly sentenced, ^^^^^^^f "\' "°""^7tL jail and the mormng sun saw 
That evening, however a mob broke nto the 3 ^^^ ^^^^^^ ^^ 

the late prisoner danghng /'■^"^/'^^XSse square, and he gazed long and 
Honor as he was into the Cou house sq . ^^^^ ^^ .^^„ 

placidly. "Well, judge," asked a f'«"d' ™ of satisfaction spread 
?.WhaJdo I thinkPJhe ^epeate ' ^ q^^^^^ .^^^_,^ ^,,, ,,, 

!!!! S^me cLrfl'tr'everse^.../^- Z...... 

K.OKXS Cot,..KOU.-At a ^X^^S^^oH^^e^tSdln: 
Washington Star, a -^\^-'^" ^^ ^lu U wlch often occurs on such 
legal Hghts of ^^^^.^;"S^:;;-„,if;;"ked the Jurist what he thought would 
nr::;e::::e^nS^^^^^- L Ccago . connection 

''' '::?:S:^ - ""io" without a retainer," promptly repUed the 

United States Decisions. 

I K 
1 f 


"I Hnn'» I 1 ^^' **'^' *^^ n"'^k response 

'•/cS^hS r ^ !;::: ::;itv"?^^'" -^ ^^^ — 

and then everybody llughed '^ P^'^'^^'^^oo'^." was the final rejomder. 

^noc;L^r;:;tc'o::tn:x^^'r.:r ^^^'-r-'-- ^^^^ -^- 

the opposing counsel, and he r '.ji T ^ ''"^'^'^ "^'*^^ ^^'^^^ "^"'^^ 
spicuous bald head. -?hat is Ivlrl 1 ?h ' '"'""">' "^ "^^ ""^^^ ^O"" 
the bald. ' " ^ ^^'J' '^^'d statement," with the accent on 

^^r7t.i^^i't]^\::2n^^^^^ '-- men have 

" Ves," was the " c ' repW a^n^ t ^""'"f '' ''" ^^^^^^ "-"- 

looked me right in the eye ' "' '"'" ^^'^ "^'''^^'•" ^"d he 

It would appear that "unorofp^ion,! » j 

have still something to learn ^Taf^r-rhe^llo"" '" ?" *^°""''^ 
an enterprising practitioner in on. V lu f«"o«"ng card issued by 

some valuable suggest, or:' :- ''''"'''''" ^^=^^^^ ™'sht give then" 

Office over First National Bank. 

Tom H. Milner, 

,, T , 1-AWYER. 

r^ove not sleep, lest thou come to poverty. " 
nffU^^l '^* read-headed, smooth-faced fr^rl-u 4 -.["dge Solomen. 


15clle Plaine, Iowa. 


193, not be admissible A vervliC^^/ ' ^^'^""'^-^ (N.V.)62 L.R.a. 
otherauthoritiesonevidet::?^-;:^:--- ^^^^^^^ all the 

post wS. ht hXd to:::;;;;:^r ^ ''^' t ^'^^'^ ^ ^^^ ^- -^ ^ 

are prone to attack perspirngto/s J is hhV"' t"^ '^ '"°^'^ '^^^ ^^ey 
6^ L-R-A. X33, to be proplirforndS 

cases as to liability of owner of beirr ■ ^ ^ °^ "egl.gence. The other 
ed in a note to this case "^ '"^""■'"^ ^°"^ ^y them are collect- 

'*. ' 


Canada Law Journal. 

Firn. nan,.-., between ^^^^^-^ir^ S^^^^^ 
deceased one, the firm name is ^e^, m 5A,/.r v. 5/a^^^^ ' ^^^^ 

796, to be an asset of partnership the executor has ng 
sold for the settlement of the partnership affairs. 

or failure of the .njureo person U, obtam the^e^ ^ ^^^ ^^ 

assistance is held, in Texas is- F. K. Lo s .; . negligence the 

L.R. A. 90, not to be chargeable against the party by whose neg g 
original injury was received. 

at a bathing resort i' held, m Barret v. x.a« ^^^^ 

it is in possession of a tenant. 

lu ■ ^ Women -The right of a woman to enter into a partnership 
Married Women. — 1 ne ngui- "i » .!,„,:»„ tn acauire. own, and 

aggreementwithherhusband, under statutory authorayto^^^^^^^^^^ 

ed, in Hoaglin v. ^.r«</^r5^« ( Iowa ) 61 L R. A. 750- 

,«„J company, for ..s """"'=""J,S''"S^°„ v. *» K.ri, A^. H. &■ 
,,.de eroding ov.,.hjgh«.y,.s held mJ^^AT.^^ ^^^„.^^ „„„„ „,„,, 

„. righ. .0 refuse to pay .he «'''"',;!*■ tt*. ticket! but, to be 
tickets, and resist ejeel.on on tender <>' '!»= P"" ° , , ,,„edy to recoT- 
reauired to pay the additional fare, and resort to ws legai , 

^i^Td the sLutory penalty fo, failure to have the office open. 

^.„.„>«/Z.».-A»„nicip,l cor^r^ionisbeM^m G„^^^^^^^ 

C«.<Ky.)6l I-RA- <'n< "°''°'» ™^'^^ ;;"*„, "Lted, consisting 
compel theabatement of a nuisance to »h>ch,t l,a>cOT^^^^^^ 

of the emptying of «th into an ope^dra on F^^^^^^^^ 

limits. An extensive n ^e to this case conaie ^n ordinance 

dutyandliabilityofmunicipality with respec to drainage^ ^^^ 

providing for the punishment of persons ^-^^^2\T^L. of support is 

Lroom! in i^i^--' J.'r;i'f ^"76^0^ wiThin the pow'er of a 
held, in Re Stegenga (Rich.) 61 L.R.A. 703. ^o 

municipal corporation. 

W- I: 



Vol. XIX. 

DECEMBER, 1905. 

No. 2 



AT the beginning of the precedine article a ,> • 
previous to Ackroyd /smsZ ? ' * '^ '*^*^^ that, 
of a deceased person wWch had be °"' "'' '"'' *^^' *^^ '^"^ 
'noney by his will became i„ '1. '°"''"^'^ '" "^^"'^ '"t^ 

of his debts, and that the mo^ey ofTr ""'''' '°^ *^^ P^^^^nt 
been converted in equitV i^triTnd h v'"''^ P^"°" ^'^'^^h ha^ 

quence to be assets L The pavLen, ^./'" "'^^^ '" ^°"«-- 
ti'e fun force of this stlLm^ h Itr l'^^; ^° ""^-^-^1 
previous to 3 & 4 Wm. 4. c. ro; the land or/'"'''"^''' *^^* 
was not in England assels for tV ^ deceased person 
debts, so that the effect of he fore/''''"'"* °'^'^ ^''"P^^ <=°ntract 
could by converting 1 lln/ri^r^^'^K^ 
simple contract creditors to obt^^n'' ^^ ^^' ^'"' ^"^^le his 
was due to them respecdvely thTurhTT' °"' "'^'^ ^^"^ ^^-^at 
go unpaid unless the testafo'rleft ! ffi "^ """ '"'^ '^^^^'^°'-« would 
them; and so that a testator !/mk'''"' P'"°""' ^^^^te to pay 
equity into land b/hi wH de^; .^ '"""^'"'"^ ^'^ -°"«y ''n 
of the right which lX:tt7Cttl ""?!' •=°"*"^* -^^'^°- 
what was due to them respectivl T. ! ^u^ °"' ^^^"^'^ "^°ney 
held that the conversion oflaTd to *\' '°"'^ ^'^^"''^ have 
available for the payment o"an uZZ'sY^ ""''' *'^ ^^"^ 
!"f ' ^"t that they should have hi that the '' "°' '"'*^"" 
-to land by will enabled a testato^Xdve ,?;"'; ^'^^"'^ 
. ■ uepnve his simple contract 

' Continued from 19 Harv. L. Rkv. 29. 



r^ 1' 



creditors of their legal right to be V^^^f^^^^T^Z^'^^Z 
surorisine That such was, however, held to be the law, there 
e mto be no doubt, though the reported cases are not veo^ 
conclusive Are these cases justified by the authorities which de- 
cXd that land converted into money by will devolved as money 
at the death of :he te.tator. and that money converted into land 
by wm devolved as land at the death of the testator? No. : eems 
not for the latter did not involve holding that an equ.table con- 
ver ion by will takes place prior to the testator s death, while .t 
leTms clear that the question whether any ^^^^^-'^^ fl^^^'^f,^ 
deceased person is or is not assets for the payment of his debts de- 
pends upon the quality of that property when the testator die. To 
Sow therefore, that the land of a deceased person is assets for the 
Taym n orhis simple contract debts because it was converted in 
equky into money by his will, is to hold that the conversion took 
effect during the testator's lifetime, - which is impossible. To hold 
tSt the money of a deceased person is not assets for the payment 
of hif simple contract debts, because it was converted in equity 
Tnto and by his will, is to hold that a testator can effect, by con- 
certing his money into land by his will, what he could not effect 
bv a direct and absolute bequest of the money. 

In Sweetapple v. Bindon.^ in which a testator directed his execu- 
to to lay out ;C300 in the purchase of land, and to settle the land 
(as the court held) upon the testator's daughter m tail, and the 
daughter married and had issue, but she and her issue were bo h 
dead and the money not having been laid out, her husband filed 
a bill to have the money laid out and the land settled on him for 
his fe as tenant by the curtesy, or to have the interest of the 
mon y paid to him during his life, the court decreed the money 
Tbe considered as land, and the plaintiff to have it for life as 
tenant by the curtesy. But. though the case seems always to 

have been regarded as well decided, it seems impossible to sup- 
have been regaru ^^^ ^^ ^^^ 

ChJs liS of o ,e Z/would have been no di«cul.y, 
':„' ; gi r land had no. been settled on .he daughter ^ 
TeCed but after .he dea.h of .he daughter and her issue, there 
tLTo one Uo couldjon|peUhe execu.or to lay .he n,oney on.. 

z Vern. 52, 58 ; Gibbs v. Ougier, 12 Ves. 4«3- 
» 2 Vern. 536. 


purchase of ,,„d, a;,d .„ LTtz::,::^!^ °"' '"■,"■• 

possession, hi. wife would be entitled toH '7 J" '" *="' '" 
which disables a wife frL », ., ""' ''"' '"^ ">= mle 

interest. This 'iZlZ^ZoZTl °"' "' "" '^""^'^ 
*e decision in Sweeta^ple rS^dr ' """ "'j'"'"" " 


a contract is also believed Ornish "l""""' ™>""'<'"- Such 
.able conversion which is a^ tt-nst'^rT "T,'^"'" 
version which is agreed or directed to oelde" " ""■ 


covenant to lay 0^1 ""n?.^ I"""'"'"' '' ' "»"=""»' 
the land, or to seUland a„L „l ^k''"''""'' "' ''"^ ""^ '» ^'^ 
have seJn ' that a covenant tot ''""="'' °' ">= ^'=' '«■=' »' 
.and or to sell lanTX: a^lT^S: Zr"^ "' 
even constitute a binding contr^^f . ^"'^ <=°"vers.on nor 
covenant to settle the "f nnr p": X^^^^^^ "P> ^ 

the land to be sold. Why. then is thirdTfr ! P'^"'"^^ °^ 

lateral contract to buy W sdl bnd Z T" ^"'^''" ^ ^'- 
buy .r sell land ? It fs because of th. H t ""''"2''"' "°"^"^"' t° 
the perforn^ance of the^o ont acts tT"' '''"! ^"'""^ ^>' 
of the bilateral contract ca^LTcIn J • """^ual performance 

land into money but of Z u ° ^ ''°"' "°' °"^^ 

causes a transfer^' only o;theTe;i?n;"'°Jl"^^ ''' ^^- 
the buyer's money to the sell! nl f *° *^^ ''"y^^' ^"t of 

ance ol^the unilatCaVct:n: ^ro^tt t\\^^^^^^^^^ 

only unilateral, cannot possibly cauTemnrrL *'°'''"^"* *' 


* 18 Harv. L. Rev. 251. 

■ 18 Hakv. L, Rev. 256-7. 


'n"V7thrc„vcna„t causes i, to a stranger to *e r""'' \"^ 

. 11 lonH to some third person not a party to the ovenant, 
or to sell land to some th r p fo^^.^.e o. the cove- 

t:z i^X\r:r^z:^"^:ior *= p,oceeas or 

lateral covenant i f purchase or sale of 

cluse In ecu table conversion, it must be a covenant to buy land 

purcna. nstance of the former that 

tLTt: m?U h=t ik St, c„„ Jet to sell land »hieh is con.- 
r^ ITn as the giving of - opUo.. Such a co^ract ., a 

:r in .rrnll^'^Uhorl a t^^^^^^^ b". the otHe, patt. 
t^the connact °o pulchasc the land. The payment of the pnce, 

1 i8 Harv. L. Rev. io tt seq. 


upon anyonewould bVthe ; ^•,° '',"^'" """ """W devolve 
upon th- heir or th*. n^rc^ i ^ "''' devolve in equ ty 

i/as. do„b.f< anVi?j?;i:r-:,'t:;''''' "-r"'^ '• 

the point. ^' *^^'^^ '« any authority on 

is that\'?o!!;:a7tTrTe* "T'"^' '" *'^ ^^^^^^^ ^-^^^ above 
only insta ce o al eo^itLT "^ "' "'^ "' '^"^ ^"-'^hes the 
tensive with ^^Llwott "'"^ ^^""^ '^ ^'^^^^ <=°«- 

why is the equitarirr rr; v^^^^^^^^^ ^i r «• 
s:i:rt ii;::r^rr" -- - =^:^^ 

causes an equitaUe conver L T'°" "'^^ ^"'^'^ ^ ^°"t^act 

sions. is tha? i s perfcr-ncr' "I """ '"° ^^"'^^^'^ ^^''--r- 
two actual convefs ot and Jr/" T^ ''"'"^^'^"^ ^^ -'" - 
conversions are radeLv th. ^henr.tions and two actual 

each of the two Tart es to th/T V"° "''' °"^ P^^^^''-^^ by 
deed or conveyanr:?^!: la^/Ctt s^rt^J the^^ °^^ 
a delivery of the price of the land bv thl K ^^"■' ^"'^ 

Plainly, therefore, the thing which the Ll ''" '" '^' ''^^''^ 

is the sa.e as the thing wh'ich he .^t„ ^'thcT '"'° T^^ 
thing which the buyer convert, infT^T ? ^"^^'■' ^"^ ^^e 

which he alienates t^the "e ler ti" k" '"W'""' '' *^^ ^h'"-' 
acts regularly take effect ^f .1 -^ ^^ '^^"^ ^^^^ these two 

the two alienaUons and th tt a^alT "' °' ''"^' ^"' '^^"- 
-ade at the same instant of Time ""°"^ "^ "^^^-'^ 

coe?eL;vVlitV'^*he"\ctaTcr'^''^ ^°"^^^^''°" ''^ "— > 
theco.enant or dltt^lr r^ tSab^ '"^^^ ^^ 
Because, in every other case th. .T . ^^"'table conversion? 
money, or of mTney into TanH IT ^°""^'-^'°" °f land into 

the money or land into wlchtTe "''' '^'°" ^"^ ^'^^ °f 

effect; and. as it i. the laTter V r"''''"^" '' ""'^^ ^^" ^ake 

version, it necessa^!^^ ^^slTtte^rt^^; X'^^^ 
conversion is measured bv the extent nf . Tr equitable 

extent of the actual conversion '^ ^'^' ""^ "°' ''>' ^^^ 

It .s proper, however, to mention another species of agreement 



U„„ i„ -"'"« • t ,1a „.o money in e,ui.y, i. «cms .o b. 
agreement converts *« ''"^ ' 4„„^ ia„d into money 

another instance of a contract "nic ^^ ^^ ^„„. 

without any gift of the money ;;» «';'=,^Jf ,„„„„;„„ which i. 
.erted, and it seems also that *= '1" '°° ^^,„j conversion 
cause, «iU ^'-^^ ^\~tr I." clet however, that such 
which is contracted to be ™ad- U « ^^^^^^^^^ ^^ 
a. agreement does no c »« ny^e,__^ ^^ ,,„ement by each of 
To suppose th- it does .s lo ^^^ ,jH„ ,„ 

„veral co-owners of land w,th »" >f °*;;^i„,'<,,-to confound 
selling the land '"<'™.' P"*"" ;°:^:Jrby1^ co-owners to 
such an agreement with »\»8'=T " ;. „d even the latter 
sell the land to some '^;^^J^lZ'Jo. of the land into 
agreement will not cause an =^"'";°'= "J ,„ ,he contract to 

m'oney without an agreemen b^ *= °*;;P»,^f J„,„. „„, merely 
purchase the land. Without *e latter th g ^^^^^ .^ ^^^ 

give an option to P»''base the land an^ ^^^^^^ ^^^ 

°ay of causing an ='l"''*\e "nvers.c^; w^U .__ _.^ 

..oney of the person rece, the op.,o„ ^^^ ^^^ .__^^ ^^^^^ 
The only way in which one can coi vc contract 

I'equitjin his own favor ^^^^y Procu^g some on^^^^^^^^^^ ^ ^_^^^^^^^ 

with him to purchase the l-"'^; ,f ^^"^^^Vit is, as we have seen, 
contract for the purchase and f^ ^^^^^^^ ^he seller's land 

the purchaser's side of ^^^^^;;'^^^fj:r.^. of the contract 
into money in equity, while t is the sei ,^ ^^ .^ 

that converts the P"'"^^^^^'^ ^ "^"^Lt the agreement in ques- 
a mistake, moreover, to suppo e that th . ^^^ ^^^^ ^^^^ 

tion is a contract to se 1 tjejand" \f ^^^^ ^^^p .^ ^ 

would be to convey the land, whereas mf ^^ ^^^ ^^^^ ^^^ ^^ 
bilateral contract between all ^^e ^^°^^ ^^^ „f ^^e land; and. 
ascertained purchaser '^^^^^^^^^^it ^^^^^^>^^ conversion of 

■ " ,, ..Beav5«;/«« stokes. 62 L. T. 176 ; Darby v. Darby. 

1 Hardey w. Hawkshaw, 12 Beav. 55^. 

3 Dr. 495- 


tclligent person will seriously contend that such an agreement can 
be specifically enforced in equity. agreement can 

,\!:l- * '^°?" ""*'''"'' ^ *''^*' considered several important dis- 
tmctions. havmg no direct connection with equitable conversion 
between a direction to sell land accompanied by -, gift o the 
proceeds of the sale, or of some part thereof, or o' .ome intcres 
thcre.n and the creation of a lien or charge on the same land 

hefo^ch r^: ^"t:" ^ f ^^^^°" ^° -" ^''^ '-^ - -i:f T 

lien or charge. There ,s. I ,vvevcr, another important and radical 
to the ^^'"T ''" ^^^° *^'"^^ "''•^h has^xclus ve r 't'on 

that whlTr"r " 7"'^''*^ conversion. -so radical 7„deed 

h nl h . ^^" ^""^ '°' '^ '^ indispensable that the two 

hmg be accurately distinguished from each other. FortunatX 

he; '\r ]" '° '"^'"^"'^^ '""'^ "'^'^ «"t- accuracy thouth 
they seldom. ,t ever, have beer, so distinguished. How then t 
the distinction to be made? i A mf^ o.7f r . u ' 

sale nf inn^ ♦», u . ^"^"^ '• "^ g'" out of the proceeds of a 
sa e of land, though .t may be of either a limited or an absolut^ 
.n erest must always extend either to the entire proceeds of the 
sale, or to some fractional part thereof, and hence such a ^l 

tiU extelV n't atrtl\r°r w' '"T^^." ^'^^^^ '^^ ^'^ 
♦!,» „ . /. ascertained. 2. Wnere land s charged with 

the payment of money the amount of money which constitl It 
the charge bears no relation to the value oitCTJ 1 

price for which it will sell, and hence ill "oft d' 11 : 
be necessary to ascertain the amount of the charge, nor wUl a saie 
of the land even aid in ascertaining its amount. How then shaH 

and ,n the codicls thereto, if any. If ,he charge be ereatec i. 
a w,ll. or by a deed of assignn,ent, and consist of alMhe .e! 



' »o riARV. L. Rev. 83 et seq. 



tato., or a,.gno., deb.. ^^ ^-^^[X^Zfl^J^^r 
Uincd by adding together ""ch debts »^^»^« « ^^ ^^^c the 

shall be proved to have owed «'»^cn he or wn 
deed of Lsignment. Or instead o charging a Uu. d _^ ^^^ 

.ay of course f^^l^'l^^t^^ : tl ^^X be conclusive 
will or deed and. m that "se. the w.U ^^^^ ^^ ^^^^^ 

both as to the number of debts ^nd as t j i equitable 

Why doe. a lien or charge en land "cvcr c^use q ^^^^. 

convJsion of the land into money? ^'/^^^^^^ l,^^^ , 3,1^ 
tutes any step towards the ''- ^ f.^^^^f,^ .ade out 
of land is directed, and a ft « »» *"^^ ^ ^^e land is 

of the proceeds of the sale ^^^.^f^^." conse- 

afterwards sold pursuan^^ to^^^^^^^^^^ --^ °^^^^ ^''^ 

quence of the sale .s that in p ^^^^ .^ ^^ ^^^^^^^ 

become the property of A. at least m equ y. .^^ ^^_ 

by virtue of the previous g.ft '° ^^[^^'2^Zr.^, when land is 
ecutory till the sale »s made On O^e other h ^^^^ 

merely charged wi:h ^^^ P^^.^^^^.'^.^r "rtL^ 
and the land is afterwards sold, whether lori J 

ing the charge or not. the ownership °/ ^^'^ PJ^^^td not been 
J, be iust whe. it wou hav. been^^^ the ^char^e ^^^^^ ^^ ^ _ 

made, and no part of sucB proc e^iseiy the same a. 

„h„.c n,ht »8f »':-Vb ore'. : s tlS, .-. .■., he wU. have a 
his "Si-' »B"f ' '^;;^t„„ci for the sum of r oney coming 
Uen or charge on =ucli P'"="==» „-.vment of a debt causes 

to him. .. "^'•■"B„'„thela"*tortnx« 
an equitable conversion o ;h 'and '°„ ,^^ „„a, «Wch is sup- 
must be because of the direction ,;irection is 

posed to accompany the charge and yej^uch^,^^^^^ .^ ^ 

wholly unnecessary, *f , '=''" 8° "^^ .^e oroceeds of the sale 
direction, indeed to - ^^^^''J^AtXn^^^ a charge 
to the payment of a '^'"a'" °= • evidence of an intention 

of the debt upon the land, but it '= ^ '" j^, Besides, when 
to maUe a 'j-a'^-^.^/re ^Ih^ht aX-nt of a debt, 

hr;o«rt« rs is. .o t. ..=. -- -t-re'd^ 

dlrecil. Into mcty. Hye« -. Mel"». 'S <:'^ °- "S- 
proposition 9. 


njcn. of .he dob.. b.."K«TX': e „ ^cL : ""'' ^f ""• 
of a direction to sell th^ ln«^ i» . "^'^^C ~ "o^ because 

propriety, that. 1^^^:^::::::^:!;^ f^r'- ^'^"^ ^"^ 

the payment of a debt and th! L7 r '"^ "''"'«" '* ^'^*^ 
satisfaction of the charge th. tl fl " f^^^'^^^-"^^ «°'d ^r the 
vious direction by the ;wncr:ft 1? '^Tk'^ ^''""-" "' '^ P^ 
thc charge cannot cause re^^iub" on:: sit^^^^^ 
money. 3. When land is charged withlhl n ^^^ '"'° 

the debt ha, an independent existence and thTr' "^ ' ^^^' 
well as in equity So far frnm > k ^^^' *°°' ^* '^^ ^s 

the charge, the charL Ts 1 H .""^ '' '" ''^^P^"'^'^"* "P"" 

cannot L^ J^^^ 'n doTs^'rieT;^'? I'l '''' '' 
other effect upon the debt LTT J ^'^ '^""^ ''^^^^ ^"X 
Phcable to its%aytnfa:d'rh3rr"J; ^h^ ^ f ^ ^ 

noth hg to cI rtrith brinrrincr fk ^ u • *' *"*^ '^"^ haS 

whe.„ I. is a:L;°:rr r;;:rseTrsa',"' r "■- '"- 

of the deb,, and hence .hat !.e dcbrexisu befo e Z 1° ?'''"'!"' 
As, therefore, a debt charsed nn I=„J f ^' '''° " "'=<''=• 

reference to he qucsttn fhX .. ',' ^/■'"'" "'"P"'*' "'•""'"' 
deb, or debts charged "son it con .,"' "' '° "" """' "' ">< 
not, i, follows that' he aTrte t " r„:; '"""^ !"'? "-""'^ "' 

person can have any interest ttaitneei.'i.erl: aT' ","° 
or negative of it. «•"•»{, eitjier the affirmative 

The only practical question, therefore, is whether I;,nH u- u ■ 
charged with debts is thereby whollv cL T^ '''^'^^ '" 

-ney, for. if it i, of cout^ny X "r:;^^ ^ '^ 

charge will be converted into nfoney i„ equL A^r .v' 
atter question, however, it may be observed fit tt, I ' 
the affirmative of it can be establUh.H .- ? ' ^^*' ^^^"""^ 

charge of land with debts cont^te'l Id"": '^ '"^^' ^"^^^ ^ 
to the extent of the debts charged upon "and the"?'"' T '^""^ 
-ents which I have urged in /sproo'f of Le lat t .too .' "'"" 
equally strong in disproof of the'propositio ^a Sre^riand 


, f 


or a direcuon ^^jf^^^^'^^^,^^,^ .nder him. subsequent to 
as to himself, and ^s ^o ^no ^j^j^^ can easily be 

such covenant or direct on. - a PO^^ .^ ^ ^^^^^ „p,„ 

proved by f ^°"^y' ^^l '^^',,^^^^^^^^^^^^ with debts, or a direction 
principle; thirdly, that, a ^^^^^^^.l authorizes a sale of so much 
to sell land for the payment of d^^?; ^;;^°' ^ ^f the debts 

of the land only as is necessary Jor th« payme ^^^^^^^.^^ ^^ 

charged and. there ore - "ot -- -^^^^ ,^,,,. j, therefore 
the surplus of the land over a ^^^^ ^^^^ ^^^ 

the charge be ^^^l\ff^t^^\^Zllt in equity, to the person 
above the charge will ^^'^ b^^°"^;^^^^^^^^^^ be land in his hands, 
who made the charge and such -^P^- ^ ^^^^ ^„, .^ove the 
If the charge be made by amU. any ^ , j^^j^ or devisee. 

charge will, at least in equi^ P^Vc, rS ngl^^^^^^^ case of Roper 
and will be land m his hands^ Accordmg y. ^^^^^^.^^ ^^^ 

V Radcliffe.i it was resolved by the nouse o 
decree of the Court of Chancery. 

...„ ^^ una, -- - rr.inr^*,iirr;s 

deemed as money so far as there are deDts P ^^^. ^^^^^ ^^ 

yet still the heir at la. ^^^^ ^^^^^^l^l^^l paid; and the heir 
far as they are of value after t^e debte an g ^^^^^.^ ^^^ ^^^^^^^ 

at law may properly come into a '^^"^ "^ JJ^^'^^^^^^^ ^^ ,aise money suf- 
from selling more of the lands ''^^^^^^^;^^Zlio.c. the devisee to 
ficient to discharge the debts and eg-e^'^^^^ ^^ ^^ .^^^.^ as money, 
convey the residue to him •, ^^^ich residue s^^^l ^^.^ ^^ ^^ .^ 

neither shall it go to the --"^^^j'^f J^^^^^ L offer to pay all 
such case may properly come -^^ a c°"rt oj eq ty, ^^^^^^ ^^ ^ .^, 

the debts and legacies. ^"^ P-JJ^^^s ^Tto pay his debts and legacies, 
for the devisee is -'^ \7^^! :;^^;;T^^^ in equity to a residuary 
This is a privilege wh>ch has been always ^ ^^^^.^^^ ^^ 

devisee ; for if he come into court, and tender . ^^ ^^^ ^^^^^ ^^^ 

discharge all the deb. ^^^Xrwill armtn";. discharge them, this is 
no more, may be sold, than «»^^^ ^"^^ ' i^^ds given in trust, or 

always decreed in h.s favor. Th^-^f;;^^^^^^^^^^^ ^e deemed in equity as 
devised for payment of debts and Y"";ee^^^^^^^^ is not so in respect 
„„ney in respect to the -^.o. ^^^^^^^^^^ eases they shall be 

to the heir at law or residuary de/isee, lor 

deemed in equ ity as lands." 

1 9 Mod. 167, 170- 

S 1^ 


So in Nicholls V Crisp,' where a testator direeted „// his land to 
be sold, and charged the proceeds with certain legacies and Tf 
the proceeds should exceed ^£3,000 he bequeatl^erthe' surls 

Led * rrT:V° *"'' ""^'-'^ •■■■^' ^■•'' ""h- - 
eiared that, the object being to convert the land merely for th. 

purpose of paying .he legacies, if the heir would paythfletcies 
the lands should not be sold. Also in Digby -/Lecard '".^hl '" 
a testator devised his real and personal estfteV'trusLef in tru t 
to sell to pay debts and legacies, and to pay the surplus to five 
persons equally, one of whom died before fhe tesZ a,^d Z 
question was whether her one-fifthwas real or personlu'state t^e 

r.eT et'la'nd ttl;'"""^" ''^ '"^ ---"'^Z^^'Z 
jected her land to the payment of her debts and legacies onlv in 

have so assumed, have already been sum"cie' sted" Cases ^ 
wh,chahen or charge on land is created by deed are generallv 
cases m which debtors, in embarrassed circumstances mZ 

roTS irrs'TT ""* '"' -" p-nrr" .r:t„: 

ni 01 tneir creditors. Such assignments, if thev creatp an,, „ 
right in favor of the creditors, creL in their iW a llto cbar,: 
on the property assigned. They do not, however necessarX 
cieate any „ew rijht. in favor of the creditors, and^h^theTdo 
not, the assignees, though they become the legal owners of , he 
property, hold it simply as the agents of their assiZ whose 
f2;an^sjhey_are, and who may, therefore, revoke thSr a lithoriV 

' 1."mS. '" "■ ■••'>*•.«•■<, in croft ..S,.e.. v.. .oT^ 

* B. ',;; /Cu-^M^-tf {-r.' J "■/"■, ™- -"■ •" "'" =•• ^-^ ■ v=- 

Flint V Warren i^ Sim e7 L e "* ' J"*'^PP ^- Watson, i Myl. & K. 66i;- 

Ha.iUo„'l"K:ot;,'lr.R.^6'J:,:'3,l''"- '''■ '"*""--• ^^^'^ht. .. Bcav. 505, «'d 
* See Biggs v. Andrews, m/ra, and Griffith z,. Ricketts, i»/ra. 




and require a reassignment of the property at any moment. So 
far however, as regards the question of equitable conversion the 
loirts have generafly failed to recognize even this latter d.stmct.on. 
On^e contfary, as an assignment for the benefit of creditors gen- 
erally contains, in terms, a direction to ^^e assignees to seU the 
property assigned, the courts have generally assumed that this 
5 S alone was sufficient to convert any land included in the 
a ^nment into money in equity. Thus, in Biggs .. An<^'ews.^ 
Xre one Biggs conveyed and assigned all his property to two 
Trul tees in trust to sell the same, and pay his debts out of the pro- 
ceed aid hold the surplus in trust for himself, and he died before 
his land was all sold, it was held that all his property devc . ed. a 
hi death, on his personal representatives; but. though there is 
rllon to believe that the decision was in accordance with the 
Xhes of the decease,' yet it seems to be very clear that it was 
Trong in principle ; for it appears that Biggs made the conveyance 
Ind Lignment, not because he was insolvent, or supposed h m- 
self to be so. bu because he was out of health, and wished to retire 
at once from business; and accordingly he had selected the two 
trustees to wind up his business for him. It is clear, therefore 
thatTn making the conveyance and assignment he made himself 
tl'llceJ,ue trust, no new right whatever being conferred 
upon his creditors ; that the trustees were simply his agents though 
clothed with the naked legal ownership of all the property, and 
thereforr he could have revoked their authority at any moment, 
and rru'ired them to reconvey and reassign the property to him. 
They could also have given up the agency at their pleasure and. 
therefore, could not have been compelled to sell any of the land. 

So also in Griffith .. Ricketts.« where an equity of redemption 
waf conveyed to trustees in trust to sell the same for the payment 
Tthe gra'ntor-s debts, any surplus to be paid to J^e grantor. •' h. 
executors, administrators, and assigns." it was held that, upon the 
grantor's death, the equity of redemption devolved m equity upon 
Is personal representative, subject, of course, to -7 charge which 
the conveyance had created. The judgment, however, seems to 
ret chiefly, if not wholly, upon the words which I have placed 
within quotati-^n marks. To me. however, it seems clear that 
Thos wo^d have no bearing upon the question. The only thing 
that could cause an equitable conversion of the land into money 

1 5 Sim. 424- 

» 7 Hare 299. 

— •> lis.-l I 


was the direction to the trustees to sell the land; and the words 
quoted could not even aid in creating an equitable conveTs'n 
unless they const tuted a gift of any surplus which should be pro 
duced by the sale; and it cannot be seriously claimed that they 
d.d constitute such a gift. Wigram. V. C. says^: " The firsfqueT 

TZ rrT ''' ;T "°"'' '^ '' ^^^ ^-^^-' ^^d loldt land 
n the lifetime of the grantor, and had the money in their hands 
In that case it would. I apprehend, clearly belong to the perso„ai 
representative of the .rantor." Undoubtedly it'would' but the 
Plam reason seems to ne to be that it would be a p;rt of the 
gran or's personal estate at the time of his death, and hen e wo^ 
devolve hk- his other personal estate » 

Finally Clarke v. Franklin.3 where land was granted and con 
veyed to trustees, subject to a life estate in the grantor In trust tj 
convert the same into money at the grantor's leath. and pfo 
of the net proceeds six sums of ;^5o each and one sum of ^20 to 

death, and no vahd disposition was made of the residue of the net 

eoTv ?'' ''.r '''' ^'^' *'^ '^"^ -^ —ted into money "n 
equity from the moment of the delivery of the deed of conveyance 
and hence that it devolved in equity, at the grantor's death as If 
L r' "°"T«- '*"'" '^ "^"' however. that tL deed in t' c se 
.s of a very different nature from that in either of the twc nreced 

the document had been a will On fj, *u u ^ 'egacies. if 

' Page 313. ~ ~~ ' 

» 4 K. & J. 257 ^** '8 Harv. L. Rev. 4-9. 


.i. M 



and the latter are authorized to sell the 1-'^']'"* "^^^j^J^^^^ 
invest the proceeds of the sale in other land, and the land is 
accordin^^^^^^^^ but. before other land is purchased, the question 
Scs whether the money is. from the moment of the sale, con- 
verted t equity into land; and this question has always been 
answered in%hr affirmative.^ and seems never to have been sup- 
Tosld to be open to doubt; and yet it seems to be clear u- 
principle, that it ought to have been answered ^- ^^^^^^^^ 
Neither the direction to reinvest the money m land, nor the actual 
fetnvestment of it in land, causes any change in ownership of the 
settled estate, for. though no such direction, or even authority, had 
been eiven ^et. when the land was sold, the proceeds of the sale 
'r/have'flwed the limitations of t^ 

The olace of the land. The only reason, therefore, for direct ng 
he rdnvestment of the money in land is that the settlor prefers 
and an Lstment.-not that he -^^es the estate to cont.^^^^^ 
to devolve in equity as if it were land, notwithstanding the land is 
old as It ^U so devolve in any event. It has been seen, more- 
over' that wLn money is converted in equity into land byadirec- 
Ton that it be exchanged for land, what actually takes place is 
his- the person who gives the direction, at the same time creates 
"^an'^ther perfon to have the exchange made and hen o 
have the land, or some portion thereof, or some estate therein 
conveyed to him; and the money is said to ^e inverted immed^- 
atelv into land in equity, because, if the person in whom such right 
fsreatd shall die' infestate. before the -tual exchange is made 
his right will devolve in equity upon his heir as if it were land In 
t.!l now under discussion, however there is of th^^ 
kind. On the contrary, each person who w.ll under the et tie 
• ^ I. :« fViP lanH when purchased, has, in tne 

^itrLd w'afsold, the mcney took the placa of the land If 

Greaves's Settlement Trusts, 23 Ch. D. 313. 


converll';" "' "° '"""' "P°" "'^''^^ ^^"'^y "" -^^^^ a direct 

wilf f^ll^T."',-'"^"'^ '"'° ^^'■'=^' ^^"^^^ '^"d has been converted 
be rt T "''""' °' ^''^ ^^"'^'"^"^' -hether such money 

Deen c ■ •erted be erroneously held to have been reeonvertnH i„ 
eqn.ty , land, the result is not likely to be the slme T^ V^ 

laid ou m the purchase of land, and the land to be setded the 
courts always hold that the money is converted into land n egu tJ 

also r:: fhrr''' '^'^"* °' ^'^ '•■"'^^^■^"^ - ^^e settleme .2; 
also as to the reversionary mterest retained by the settlor / . nl 

only as to the persons in whose favor the settfeLnt is to b " -de! 

decided, though thar^as a case of co^ve; i ;,a;d 'mo r' '° " *"'" "'""^""^'^ 
In that case, a testator, who was a wWow 7nd jfd " „ f 'T T """'^ '"'° '^''^^ 
devised an her land to trustees in r^ t tl's^ ute ta'e t" H ^"'''" ^"^^ °"'^ '■'''''^' 
for educating and bringing un the d! ,1V ^ u ^^ P^^"*^"' "^ '''='''». ^"d 

or married, the trustees wer"'drected to n' '^ \ "' ''"" '"^'"^'^ '^^-""'y-"- 

gaining in their hands! The tug e ZaLe^a ilaT TT'l "' ''' ^^"= ^"" ^- 
and so remained till her death - JZl IT "-'^""^ '''^ *"^'"^d f"" age. 

of the land having been so 'sir TIIT^^VT^T T T" "" '"^'''^- ^°- 
were entitled to it. It seems to be 1. I' ' 1^"' '^' daughter's next of kin 
equity to the daughter. ndtTr fore that ft irh "' I'J'V'^ '^"'' ''^■^""'^^'' *" 
would have belc;,ged to her lre2ul:''°^'^''^^^'°''^'^'°^'^^^^^ 
authorized to make of Lm Cons ' ,'' '° '"^ "'' ^'^''^'^ "'^ trustees were 
attended with no alienation .f ^.ZZIT^J T 1 '"^ '''"' '^°"'' ''^^^ «-- 
caused no equitable conversion. Secnn . " ' ' ^° ""^ direction to sell 

'o .-.«e =r. the daughter's attaining twt 71 ''^"'' '?' "''' "''^ '"'^' '^^ 

remain unpaid. Certainly, the trustees w J T^-"^! " "' ''''"' '"'""''^ ^'"1 
daughter attained her full aee or r^I H.h ^'"'honzed to sell the land after the 

then, that the direction oTel7froal„r^?: ''"^ P='^'"'="'''^ ^^''''- Assuming, 
there ce.^ed to be any equit b , lonSs^n ^ n thlV^f "° ^''"'^'"^ •=°"^''-» 
a direction to sell cannot possiblv causTl^ m ^^ '" ''"=''"'-•'' '"^nty-one. as 

confer any authority. ^ ^ '' ^" "'1""^'''' conversion after it has ceased to 




but also as to the settlor and those claiming under him, and to 
this rule the case now under consideration is no exception. Thus, 
in Walrond v. Rosslyn,» where, by marriage settlement, the in- 
tended husband settled land in the usual manner, and the settle- 
ment contained the usual power of sale and exchange, and. m case 
of a sale, the proceeds were to be invested in other land, which 
was to be settled to the same uses to which the land sold was 
settled, and some of the land had been sold, but the proceeds had 
not been invested in other land, and all the limitations of the 
settlement had come to an end. except that in favor of the in- 
tended wife by way of jointure, so that the proceeds of the sale 
had confessedly become the absolute property of the settlor, 
subject only to said jointure, and the settlor had died intestate, 
it was held by Sir G. Jessell. M. R., that said proceeds must be 
treated as land in equity, and consequently that they devolved 
upon the settlor's heir; and yet such proceeds ought, upon prin- 
ciple to have been held to devolve upon the settlor's next of km, 
and that for three reasons: first, the j .intress had the same right 
in said proceeds that she would have had in land purchased with 
them, and hence there was no equitable conversion of said proceeds 
into land; secondly, the jointress had only a charge on the land 
originally settled, her jointure being by way of a legal rent-charge, 
and, for that reason also, there was no equitable conversion of said 
proceeds in her favor; thirdly, in no possible view could said 
proceeds be converted in equity, except in favor of the jointress, 
nor even in her favor for any longer period than her life. 

So in Chandler v. Pocock,^ where, by a marriage settlement, the 
father of the intended wife settled land to the use of himself, the 
intended husband, and the intended wife, successively for their 
respective lives, remainder, in the events which happened, to 
such uses as the intended wife should by will appoint, remainder 
in default of appointment by her, to the settlor in fee, and the 
settlement contained a power of sale, the proceeds of the sale to 
be invested in other land, and the land was sold accordingly for 
consols, but the consols had not been invested in other land, and 
the wife by her will bequeathed all the residue of her personal 
estate and effects whatsoever, and the question was whether this 
bequest operated as an appointment of the consols under s. 27 ot 

1 n Ch. D. 640. 

s IS Ch. D. 491, 497. 16 Ch. D. 648. 


even have arisen. Yet bofh T™. ' ^ I""""" would not 

that the consols had been whonvLr'T?'? °" ""^ ='^''"'P"°" 
and, on that assumotior J^fl ^^"^"ed « equity into land, 

surtling doctrine t^a't "he el "?'°" T""^ *= -"^Oal 
the Wills Act, n,eant " a«l oT. "^r'"""' P'"?'")'-" ■'" »• ^7 of 
converted into land," 7^ ha, Th? . f ' "^'^ ""*-*=ly 
section, wholly ignored rted'lt^ine ^^ •"'!,• '" "'"'"S ""' 

In /„ ., Greavi's Settent. Tns .Tr-"""™"- 
the intended husband settled land ^n /l, ""r """^e^ settlement. 

life, --ainingthereversion n ft fnLself^^Sl'^H^^ '''" "" 
tamed a power to sell the I;.n^ '" """self. The settlement con- 

other land"; and ^Cl^l'^tZ^^^-^^ t^^"-'''' '" 
were invested in new three ner . "'"2'^s°'«l' but the proceeds 

survived the husbandT 1 be'ue htd' a'll h'^^ ""^'"^^ '' *'^ ^''^ 
funds or elsewhere to his chndren n """""^ '" *^« Public 

that the new three ^ercenfdS f^"^ ''' "^ ''^^' J"^^''^^' ^^''^ 
verted in equity into' land .d the beSttt""' '^'"^ ^°'^- 
appointment under s. 27 of the Wms A " Th"^'""'''"^ '^ ^" 
therefore, of holding that the new^ e per cen^s I """'"'""' 
m equity into land, was that the testatorl intenV ' '^""'"'^ 
disposition was wholly frustrated 11?^^'°" ^' *° *^^''- 
the conversion was held to ex end to .?.!"'' °"'^ ^''^"^^ 
-terest. If it had been hefd llV h\f tte^'V^T'^"^^^ 
equitable conversion, or that the 7 v m '^ ^^^ ^^^" "« 

only to the wife s life h tere the TfT^ '°"""^'°'^ ^^^^"^^^ 
been fully carried out ''"*°'' ' '"'^"^'^^ ^°"Id have 

set^edtid tit^d^:!^^^^^^^^^^^^^^^^^^^ rr ^^^^^-^ -^-^ 

in possession, remainder to his first and itl " *'"'"' '"^'^ "^^ 

tail male, remainder to said Duke in 1 /T '"""^'^^'^ '" 
under a power conferred K ' ^""^ *^^ '^"^^ ^^^ sold 

proceeds of the sale to t '" ' VT'^ ^'^' "'^'^^ ^''"-^^'^ the 
-vested in ^l^l^LtVZtt^ f'% '^"'' '"^ ^'^^^ ^^^ 

-ue. having devised r;Sut;''.:ai%trf 1^' ^^^'°"' 
^^reai and personal estate to 

' 7 Wm. IV. & I Vict. c. s6. 
' ['893] 3 Ch. 244. 

* 23 Ch. D. 3,3. 

I- .: I; 


hL land and yet the Duke's remainder in fee. which was all 

preceding case. C C. Langdell. 

Cambridge, October, 1905. 




account of the corporation and with .h. . ''thoigh made on 

liable. It is immaterial^h«hcT th, *"'■'««"'» «>>« it »ill be 

ije name of the P"^,:L^io:;o^LT::'^: ^^ Z"''" " '" 

It IS an equally unquestioned rule th,f ^ *''*' promoter, 

the corporation mly become iabll o^' ^ ''r^'" -*••*=" ""Stances, 
as those embodied fn theTereLtlnr f^ '"''''""''""y ^''^^ ^^-^^ 
istence. The purpo^of K^Tetr ''''"^;'*^ *=°^P°-*« «' 
ciples on which thfs habUity rests '°"'"" ''' '^^^' P""' 

the principles in.^:^^^^;:^'::^^-^' -"'r^' 

present discussion, the tendency to confute the h "r?l °^ '^'^ 
those cases with cases covered here ^eslt ne '"'""^ '" 

out briefly the theory on which thLrH "'*=^'''*^ *« Po^nt 

In many jurisdictions stltu tes make theT" P""^'^- 
certain expenses attenHin^ Tu corporation liable for„y;^.o^: T^tztz':^:: ,;::'/Tr'''' -^ "-^ 

make, similar provisions.. Where ""ch i h. °' '""""""• 

forming the services provided f^in-l ""'' "'"""^ P"" 

may recover auainst 17T "" °P°" ">= Provisions 

being statutLy? "T""""" when formed, the remedy 

.he'^^rpo^^irracoratarirrr "'"■ " ""■"' '"-• 

vious that the doctriL invled'her^ is „L cecT ""■ " '' *"^ 
bat extends to all contract, JZ, ,. P'<^"''»' «> promoters, 

scope of corpo^te ;reT S ""•" '""'-'-"»"" within the 

.he contract'^^as en'tr;- in.ot* ;:4r:o'.h' """ ""^ 
existence. reurence to the corporate 

Lindley, Companies. 6th ed., ig6. 

Scott V. Lord Ebury, L. R 2 C P ,c,. . i • j, ^ 

/. 1.. K. 2 c. P. 254; Lindiey, Companies tu^. 

q8 harvakd law review. 

The corporation may al,o obtain riehu under »""''«' ^>; 

-- <•' .'» -rf „7-l 'irse^tncTrirtHf/ond 
r'aTo'lL or°not:U°rtin,c when it is .adc is e,„a,.X 

:;;:;rraSoTrr^^:^^f-^ - ^ 

1-^ .Ltract between the promoter ard the corporation, 
vahd contract oeiween uic t' poss ble to 

These exceptional cases being disp ed ol, it is now py 

Je''r;trc?ses, Which are «.eJ.n^«eo^^^^^^^^^^^^^^ 

sion, where an agreement h^ J^/" ™*'';^ ..j ,„ hold the 

.oter and a thW P-^-^^^'^.'^^r^jren, is that a cor- 

7ar ;Ca cat^n'or Toption. becomes liable on contra* 


principa, who - "Pf ^^taTy hi doctrine can have no appli- 

*'- '^'^nTcTasso casefdisc^^^^^^^ here, since the alleged prin- 
cation in the class of "ses a Furthermore, the 
cipal is non-existent when the contract is "laoe. 

1 Werdeman v. Soc. Gen'l D. Elec. 19 Ch. D. 250. 

« L. P. C. A, Cas. 671- wmnress Encineering Co., 16 Ch. D. 125. 

. Gandy v. Candy, 30 Ch. D. 57 ; ^« ;' /""P^^*^ ^"^ "J! spU,., ,. Paris Skating 
4 Stanton v. New York, etc., Ry. Co.. 59 Conn. 272, P 

Rink Co., 7 Ch. D. 368. ,firhDi2< 

6 /« r^ Empress Engineenng Co., 16 Ch. u. 125- 


corporation, and ce^e when VeT "" '"' °''^*"'-tio„ of the 
evident that the prin^;,:' " g n ^X^sr ^^r"^" '' » 
of the question. The meaning of th?» ^ '^'^^ '" ^^"^ ''^'"t'on 

With ratification as anTireSivt; ;:rs'rtrh"f ^^^"^'^'^ 
tion may become hable, is someJhJ T ^"""^ ^'''^ '=°''P^«-a- 

in this connection. It' harreTn'l r.-^f.^t^ ''''' ^^^^ 
one's own that with reference to whir hi °' ''^''^'^^^ « 

tion. colorable or otherw '" ''i w .u '''"' "'"^^^'^ "° P"or rela- 
apparently the same a, ratification X^rlyrcanr""'"^ '^ 
o..y as a syn.^nym of acceptance » ^ ^ "" ''*' ''"S^''^'^^ 

cas^s^^clttTra t^^^^^ ^^ - the En.hsh 

tingham.3 Of these EdwafdsT- °^;ases decided by Lord Cot- 

most frequently cited on 1 „t "th/":!^^^ ^^•. ^°- '^ ^^^ 
court. The importance of the case iu. .fi ^'^cuss.on by the 

statement. *'^'*' J"'^'^" a somewhat complete 

projector, of ,he deLlJ, ' °^ '" ^e'^'n-^nt made by the 

.-s or„wch .heSsrrtTw-rHdr*: s'r'"^^•?' "■= 

the granting of a charter tn fK ^undraw all opposition to 

Which the projector^;romrse j^ /;r ^^^^ ^°T"^' '" ^^^"^ '^' 
articles certain amendmenTrespect. /r'''!''" ^'^ ^^'"P-y'^ 
the turnpike operated by th pbS tT '' °' ' '"'^Se ov^ 
formed proceeded to buUd the oaH " <^orporation when 

ment with the projectors The T. '^"°""^ '"*"^^'>' ^^e agree- 
acted upon by ^he' ct^oratl'n IZTco^ ^r '°" ^'' "^^" 
the injunction, stated that the ^or ?• ^°"'"Sh^'"' '" granting 

the projectors ^ndsucceedVtothrS" T'' '" ^'^ ^'^^ °' 
liabilities. In reolv to *h. . ^ ^"^ '"""* assume their 

corporation U 11 h?rS"'..T;e"° "'""^'"'' "^ '-= 
.here can be a binding contract aUa/buVrl"" ■?"'"-''■•=«'" 
permit the company to ii,e !k r,„ . whether the court will 

J Sj^hreyer v. Tum^er Flouring Co., lo'^iTT " ^ ^ 

; L-ndley. Companies. 6th ed! 232. 



«mc judge, K""."'"!' '""J^' *",;/H,d „o, i„ any way i"- 

r/;tra»tr.o raB-r.^f V p-oic«o«, ..^.6 « 

dicatcd an assent to mc b ratifiration or adopt on. 

i„,possible to invoke any ^^f '""^///f^'^te " arded a, such an 
^he acceptance of the charte nnot b ega ^^^^^^^^^^ ^^^ 

assent, since the company dc"v« -^^^^^^^^^^ ^^ ,^g„,,d 

^^^o. has been repeatedly critic^ed in the Uter EngU^ 

decisions, and while not in -- ^^^^^^^^^^ ^ra^ming any 
ited as a precedent.' The dec.s,on .s .^^.^ „ ,i,, 

identity between the pro3ec^^^^^^^^^^^^ ^^ ,,,. 

identity exists, then the conclu ^.^^^ conscience for a 

lows without question. «f '* J^'^^'^j^'^f ^^^gal fiction, to ignore 
group of men. actmg ""f".^^^^ another capacity. There may 
obligations undertaken by them '" *"°*^" P^, J^e probability 

:s;: "TH:;:imary pi«^^: ^^ r^o^ ^ ::^e 

investors in the proposed ^^^--P-f/^^^P^^'ot concerned in the 
when the corporation ^\^'^^'''''%ll''Zt\7L projector is not 

able diligence.* , ,, ._ identity by Lord Cottingham be 

» .Sn/ro, p. 99. note 3- T<,,mw9V8 Co 4iCh. D. US- 

t /» r* Skegness & St. Leonards Tratnways Co.. 4 Caledonian & Dumbarton- 

. fV Specific Performance of Contracts. 4th ed.. .03 . C^ed ^^ ^ ^ ^ 

sbire S C- -• Magistrates of Helensburg . Macq. H- L- C-^9, ' ^^ ^, ^, „. p„,,„ 
Ry. Co! S H. L. Cas^60S; ^f '^''^.^c ? 503;/^ «U«ss Engineering Co.. .6 
Alegre. N. H. & B. Ry. Co.. L. R. 9 ^- *^- 5 3. 

"^ °C k^ D. Ry. CO. .. Magistrate, of Heiensb"rg. «./.. '^^^^^ "" ^'^ "" 
.u,ra; laH of'shrewsbury .. N. S-«of h.r« R^ j:o. L R- J^^S93^ ^ ^^ ^^ 
» Gooday r. Colchester, etc, Ry- Co., 17 Beav. 3 


The same conclusions are rea(<hr.ri :« - i . 
person is attempting to prove fn the winH "''"' '^^ '^'^ 

the corporation. In these calesth./ *'"^'^^-"P P^o«cdings of 
"tion passed resolut ons or .1 ?/P°^^^'°" ^ad after organi- 
-doptin^r ratir^rcon;^^^^^^^^^^^^ ^^J^:^ P-P- of 

rormance brougt r/rier:^^^^^^^^^^^^^^ P- 

lessor was not allowed to orovr- nnT ^ ^'^ ^""' ^^^^ ^^e 

proceedings, on the^ro mST. * ' '°""'^*=' '" ^'^^ ^'"ding up 
between the Tessor and the '^' "° '°"*"^^ ^^^ «how„ to subsist 
court that if the less"? could h^r^'T' '' " ^'"'"^^ ^>' ^^e 
into between the 00^X3^ InHV ,7 " "'^^ ^°"^''^^' ^"^^^'^d 
allowed, but evidencnh. ?n ^ '"'"'^' P''°°^ ^""'^ ^ave been 

ing the'agrle^nTrn ' of ptS:?oTr '^^°'"'°"^ ^^^P^" 
not establish such a contract sincT.n, ^'"^'''^ ""'^"'' '* *'" 
taken by the comoanv unT.^r °'*' '*"P' ^'''^ obviously 

was valid, and crrotVetkefa^r"''"" ''^^ ^''^ ^''^ ^-^-« 

In Scott .. Lord Ebur;f:h;rrthn^^^^ ' "" '°"^"^*- 
the promoters for -ney^d^te ^l rpra^L^ffsT^^^^ ^T 
parliamentary expenses incurred in securing ti?u *"''* "^" 
company, Willes, J i„ reolv m .1, ^''^''''''^ *^« <=harter of the 

of the company by ;ie 2lff ^^^..^^T^'^" ^'^^^ ^'^^ ^^'"""g 
lution of th'e bCrVo dt tl oV L f ^' '^"P''^' ^'^^ ^ -- 
agreement made by the 0^^.? u <=0'npany confirming the 
would discharge tL nro ' T ^ "^ " "'"^ ""^"^^ ^hich 
lacking to male such a^co.' °^''^'^ '^^* °"^ ^'^-"^nt was 
the bank. The acts ur.d.^r" P°"'''^' "^'"^'>'' ^^e assent of 
in the mistaken be ef oHiabilitv"'"! T '^°"^"^' ^^^ ^^•^- 
there is no evidence of in v^ . ^' °"^'"^' ^""^^^'^t- «"d 

bank and the corporal ^^ ""'"^ °^ ^^"^'"^"^ ^^^-n the 

-^^^^^^!!^l::^^ that a new 

Ty.Co^.C„p^p,,^p„,^^^^^^ .^4 (W.,; Beat Pn.u.atic 


\ w 


1 n| 

1 W 

1 m\ 


r?-rr fr?^ t JL a«.a .0 .e a.„.e„« 

^"rtlrtVuT/:^ *- fac« tha, a new contract wa, entered 

' uVCesHonable whether Edwards .. Grand Junction Ry. Co." 
,ion were .nvolved^ '^ /J^f^^en is that the corporation is no. 
Tab^nrc'racts'tSing its formation, although .ade on t^ 
account, but that *— P^^rthTL p^i n td ^eX 
rr^^^'irdetert tag wi^er or' not su^h contract exists, step, 
fak?n by eth r party'in the belief that the original agreemen 
made th oueh the promoter stiil exists will not be considered. The 

of trust, novation, assignment, or express provisio. 

"xt American cases, both at law and - equity are ove h 1^^ 
ingly in favor of holding the corporation hable on contract ante 
iSng its existence. whereverJ^J-JM^^tm^^ 

T38Ch.D.i56. '^''^''■ 

» Fry, Specific Performance of Contract. 107. 

I Supra. 


same, ratification or adoption beinfr shown ^hh.r k 

lution of the manaffin? borfv ^7k " ^^ ^''P''"^ '""o- 

of the contracT' ^ ^ ^ °' ^^ "'"'P^'"^ *^« ^^"^fits or fruits 

The American cases without evr*.n, « , l 
the group of cases i,.^V^ "^Zy '"Tj" """ '° 
with approval as decisive of ,he q^st . ,'' 1,^m"h', ■*"■ ^ '^'"='' 
courts, and apparently form the blis of hf '"u"'^"'"'"'' 
American doctrine No cL h!= k r ! generally accepted 

as far as the English cts " fer'rd t' ^e "a^ °"=""' "'^' =°- 
ing in evety instance on some act bv ,t ""'"." """» '"''«- 
.0 organisation showing an taLt to t tunT""°" ^'''^"'"="' 

tinit :ntTe"w:e";°ar;nT':f' f'^''^' ^ '"^ ■""■'-«- "' "- 


■its: S^nTth^TiaSlifnr^o^^raf •-• 'T^ 
meagerly discussed • th^ iJokr. • ""P°^^'^ 3"^^ as a rule very 

A nT,mK„. f agamst their soundness are dealt with » 

on a novation or assignment.* ^ properly rests 

* Little Rock & Ft. Smith Rv rl. n ~ ' ■ — 

V. Towers Hardware CoXaI'^^uZT.?.'!' ^'l' ^'V ""■ * "• "-^-- ^o. 

CoIo^App. 5,s; Carter.: sLKL2tS;Ri^^^^^^^^ "■ ^'-'- ^ 

etc., Ry. Co., 59 Conn. 272 • The r • r- ^ ' ^ ^*'- "° ' Stanton v. N. Y 

^. Parker, .4/L. r.;rD.b?;e%:SL'cone'r:' To"^' ^-^^/^^ ^'^'^^'^ • '^^ 
SiS; Bank of Forest v. Argill Bros & Co ,! sT r ^'^'P °^ ""'^"^"«' '3 ^owa 

91 N. W. Rep. 6,3 (Mich.) fw/riaoe wfr /J'- ^'^ ''''"' ' ^'^'^ ^ duller. 
395 ; Oak, V. C. W. Co.. 43 N Y '4,0 Lt p 7'"'^" ^"«" ^"^ *■■ S™='"' 4° Md 
- Turner Flouring Co., .9 Or. .^^ £S ±7, ^ "k"-""' "^^ ''• "" ^7°= «<=hreyer 
-. Globe Milling Co., 20 R I. ,90 W/.T Hur„ P " '"^' ' ^ ^"^ ^'^ 54 J Ireland 
4 So. Dak. 520 ; Chase .. Redfi^irSer^C? «'"'^* B-dingCo... Kittleson, 
field Creamery Co.. 8, N. W. Rep ;;r(So DaM P^'l'" ^^^^ '^'^^PP'- ^ R'^: 
Quentrell.9, Tenn. 693 ; McDonoughTfiank of H ' !'"''"^' ""' '""'"^ ^o. .. 
-Bordo„,ir<^..8oWis.635; WhitneV.. VVW "7^".' '' T"" ^'^•- «"'="«»°" 

» Edwards v. Grand Junction Rv To c. ? ' ^- ^- 39^ (semble). 
& P. Ry. Co.. supra. •' ''''• ^''- ^'''"'^y ^- Chester & B.Ry. Co.. Webb v. L. 

-Mo-;^Sterlin7rmp.Co.;4K"^ '""' '" "' '''• °""'="» 

Conn'^t. (t*/^;'b°Mham'rMolntteri^^^^^ Z' ^'*"'°" '' ^' ^- «»«=•• ^^ Co.. 59 

* A 



bound by the contract ™''= .'''' *° P'°" ted as the basis of 
«eU known "f^^^^T^Vt ^pS^n Ji L principle is not 
decision by a few courts. ine app 3 proving the contract 

dear, since the -<f J. ^^rg^tirunder it is attributable 

Z^^^ lirbvio^ ct^o a .^utual n,ista. as to ^^^^ pro- 

In a number of J""^d^^*'°"^,*yf^'^pen offer to the corpo- 
„,oter and third person .s ^^^ffj^^^^^^^^^^ ^hus create a new 

of acceptance. , . decided on the 

It is evident that practjcaUy ^"^V^^^^^^^'^.L grounds stated 

ground of ratification or ado^on -uld e t^-^^^^ ^^ ^^^^^^^..^ 

t::::::^^::^^^^-^ on L account, eithe^ in terms 

bility of a new contract be^weeth^^ 

and the third person, the broad line ^^^ ^^^ . ^^^^ ^^g. 

being the manner m >^^^^^ .^"^^J^f^^^'prthe corporation which are 
lish courts taking the position that actj 01 1 P ^^^^ .^ .^ 

clearly attributable to the «"°"^°"\^; ;;^,ed as evidence of a 
liable on the original contract -""°; l^^^ ^^^ ,^^ f.^ther fact that 
new contract, particularly when coupkdw^h ^^^ ^^ ^^^^.^^ 

direct negoUations ^^^^^^J^^^^^uZon the other hand, re- 
cannot be shown. The American indicating an intent by 
„ive as evidence of '^^^^''^t^^VL original conttac. 
the corporation to r eceive i.u^ ^ 

Holjok. Envelop. CO ,,-V.S. E""1«P« ^"^ ■»^,'J^„. ^„,t., 3, S. W. I!=P_ 9» 

r^-frw^iiss^'M'-^Vs^i-f-- «- <- - '■--' «"'^ 

Co., 89 Wis. 406. 


Relent pTr ^""^ f ^^^^^'^^"^^"^ ^PP^oaches most nearly the 
present Eng hsh view,' when i. declares that a corporation cannot 

ZXfir'T •'• °7*^^' ^°"'^^^* ^y ratific'atfon or adop 

that'the accen r '""T"' ^'^ ^°"^*' ^>' ^^^ °f -^-^^^ -timates 
that the acceptance of benefits may be evidence of a new contract 
between the third party and the corporation. 

suit reathT'"" ^f'^T' ^'''' ^'^''''^''^ ""^"'"'"^"^ '" ^^e re- 

/ f . naDiiity. The English cases, on the other hand 
have developed a logical, consistent theory of liability. The con 
sequences of the liberal American view on the question ofproof 

agreements made on .ts account by promoters, since i^ has the 

Urresu r'^*"-M °^ "'""^- '* '^ ^"b-'"'^<^ that an equ^^ 

do e of " ^"""'^': "'''°"^ '°'"S ^'°'«"" *° recognized prin^ 
ciples of agency and contract. 

University of Wisconsin. ^' ^- ^*'^""''^'' 

\ ^^^\ " "'• "■ "»P«°°d rf al., rso Mass. 248. 
Holyoke Envelope Co. v. U. S. Envelope Co., ,82 Mass. ,7,. 


\ 1 3 




^T^MTTT? ALLY in the Continental systems of bankruptcy legis- 

visory control over the official court ^^^.^^ , 

executive control of the assets .s m the ^ands o ^^^^ 

I„ the English ^^^-XZXrJ^^^ot.^ adlistration of 
the creditors are to ^^^^^^ J^^ "" . ^he supervisory power, 

the bankrupt's estate ^ ^^ '^^f /'^^"''so^^ „^ creditors an 

The last English bankruptcy A^^^^^^^^^^^^^^ ^^^ ^^^^^^ 

absolute right to name the trustee w ^ ^^^ ^^ ^^^ 

in their behalf. The Board of ^'f^^^^^^^^ ^j^ s on the va- 
selection of the creditors, -l^/^^^f^^ ^^^"^ly of three causes: 
lidity of the objections, which rnay bejor any ^^^^^^^ 

first, that the appointment was "° "^^^^'^/^^j 30ns abso- 

that the appointee is not ^ ^\l^''^^J^l,\ \Lo. who has 
lutely disqualified are f/^^^^^ J^ X J Ctee^or r^iscon^ 

it would be difficult for ^;-;° -J;;j:;;:^tgislation on this sub- 
In th;s country the pohcy ^J ^a^krup^y g^^ ^^^^ g.^uruptcy 

jecthas not been uniform. B^g^"'""^^.^^^^ ^^e fullest liberty in 
Law in I800. Congress gave to he c^ ^^ ^^^ ^^^^.^^^ ^^^^ ^^^ 

the choice of fj^l'^^^^,,,, should choose a person or per- 
n.ajor part in value oahecred. ^^^ ^^^^^^ ^^^^^^ ^^ ^^^^^ 

f^ed" trapprCarofX choice on the part of the court was 
provided for. however, the Continental prac- 

an assignee a ppointed by the cour t 

a 46 & 47 Vict. c. 53- 

4 Bankruptcy Act of 1841, § 3- 


suifel'tTL'^ '"^"''^ :' -^^-' <=ourt assignees was found un- 
su.ted to American conditions, for in 1867 the Bankruptcy Act 
passed m that year followed more nearly the English pracUce I 
left the creditors to choose one or mo^e assignts oH^e itatl 
of the debtor subject to the approval of the dfstrict judge 1 The 
genera orders of the Supreme Court expressly prohib ted ^he 
appointment by the district judges of any official'^assign e or any 
general assignees to act in any class of cases - ^ 

The BanKruptcy Act of 1898 was closely modeled after the Act 
of 1867 regardmg the selection of the trustee in bankruptcy a 
though Its provisions are not wholly consistent. The bankrumcy 
court ,s mvested with power to appoint trustees pursuant "the 
recommendation of creditors.a On the other hand, the creditor! 
themselves are c yen the ah<!n1„f« -.-^i,* * • "-rtauors 

trustees.* absolute right to appoint one or three 

This conflict in the statute has led to a curious result. Not only 

Act of 1867 that no official trustees shall be appointed « but has 
engrafted a limitation en the free right of selectbn of the trustee 
on the part of the creditors that the appointment •■ shall b be 
to be approved or disapproved by the referee or by the judgj '■ « 

Jn ? ' T. r "^ "° ^"■'■""^ ^°^ "^'^ usurpation on the part o? ihe 
court^ The General Order plainly seeks to borrow from the Ac 

en.'?-^ ^r "' P'°""°"^ ''^^' ^°"Sress has not seen fit to re 
enact in the present statute. Although there has been no judic al 
disapproval of this order, one of the leading text-book wr ter on 
bankruptcy has already expres3ed doubts of its valid itylandtSc 
expectation that this general order will not stand the s'^:ru iny of 
the court that promulgated it.^ ^ 

nisIeHr^'Tr^'^P'''''''" ""^^"^ -"" P^^^^"t ^t^tute has fur- 

tTe creditors Th'" '""''"' °' ''^ ^^'^^^'^^ ^' ^^e trustee by 
the creditors. The court never undertakes to exercise its right of 

appointment under its general power, and names a trustee under 

the express authority given it under section 44 only when the 

creditors fail or neglect to exercise their rights. The se lection of 

* Bankruptcy ^ct of 1867, § 13. 
J General Orders. IX. Supreme Court, October term. .874. 

• Bankruptcy Act of 1898. § 2 (17). '^ 

* Bankruptcy Act of 1898, § 44. 
» General Orders, XIV, 172 U. S. T; -.. 

• General Orders, XIII, 172 U. S. 657. 
"* Collier, Bankruptcy. 4th ed.. 330. 

t ; «iJ 


a uu,.ee is an lmpor.a„. and righ. "J *' ^^f ^ JJ 


?„ J of this orivilege to the creditors on the part of the courts, 
gate. Negligent, complaisant, and friendly "«^'^° body of c«d,.ors .. s,^^f -.e, o^^^ ^^^ ^^^^ ^^ 
rs"e rn.L*is suVof affairs is brough. should „a.= every 
effort to defeat such a scheme. . ,„„„ht to the attention 

ira°re:.U\iSio "ap,.^^^^^^^^^ 



Vice-chancellor, Sir John Leach, was oil J . . ^^^ the 

should be avoided. <« It is agams '"^^^^X ^iZ^s \.^\y 
whole policy of the ^-^-P^)-; ^^^^^^^^^^ presente'd 

to choose their own assignees. ^hen t q ^ ^^^ 

to Lord Eldon on appeal. ^^ .f ^l^^/^^f/'hTwever. has always 
choice invalid on other grounds. This case, now 

1 I G. & J. I2S- 


been cited as sustaining the view of the Vice-rh:,nr.ii 
came a fixed princiole of fh. t7 ^"^ ^'ce-Chancellor, and it bc- 
such interferenrby he bankrtt "^ f , ^-f^ru^^cy practice that 
the subject seems to be sadsflctn 7 ^' ''''^^•°"'' ""^'^ ^"-"y 
of their bankruptcy statute "^ '°'"'' '^ ^"P^"^ P^°vision 

thi^tCt w'tt^::i:jv^^^ ^°r^'^^''° ^-^ ---^-d 

dealing with the problem"^ All o°" "''" ''' '^''''^ ^'^ ^^^hod of 
policy of the Bank?upt"y u! ^"[.^^^V"'^^"'^^ ^'^^^ *'^^ ^^^'^ 
liberate, and unbiasedfhoiceTn h. 7'^ "'^^'"'' '^' ^'''' ^'- 
is to administer the asset 0"^/^ '^^ '"'''"'' °'*''' P'"°""'° 
statute is very carefully drawn t"*^^?' ''''''" ^^' P'''""' 
rupfs affairs, either by a relink T"" ""u"' '=°"^^°' ^^ ^^e bank- 
ence in connection wifh them to ^ ' °' '^ *'^ '^"'^-P^'^ '"«"- 
of creditors.' To erect a tr- - '' °^ '^' ^'"'"""^ ^°^>' 

and value of the cred tors ore ..' 7'°"'^ '°'^ ^"^^ '" ""'"ber 
insures that neither o„,^^^^^^^^^^^ ^"' ^°^'"^ '^ "— X-^ This 
trustee in his interel nofth'°"'"?"^ "^^'^- -^y choose a 
combination may ele ' a trust ' T '"^.'^"'fi^^"^ creditors in 

the^.y su.taia. ::^:s;it^:;:^~- - --^ -- ^e 

-sa^ne are t. beneficiaries i^t:^-^^^ 

rupt, but to .ake the rno posit ou tofThe" ""' ' ^"""'^^ ^''^ •'-'^- 
of this duty ™ere bias or unLndL: ow d^^^^^^^^^^^ ^^ "^^^ 
If ever, material. Considering th^ „. T f ^^""^"^"P' must be rarely, 

bankruptdesinthepasra alou watcht^' '"' '"^"^"*^^ °^ ^'^^"'-^ 
action cannot be look d Tpon L del > '™ "^ °' '" '"^°'^^"''^ ''-"^- 
' competency in a trustee IJ r I !, "^ ^' '"^'^^''^^ °f ^ J^ck of 
-y be met; the^ ^^ mett:':^ruffe::i:r ^^ "' ^^^^■"^^" -- 

two possible courses seem t^e open to thV ' • "' ' ""^^^^' 


,5'a /arie Moiineau 
/» r* Henschel, 
Bankruptcy Act 

J f'^ ^^' ^- 7°J ■• ^'P^^t' Carter, 
'09 Fed. Rep. 86.. 6Am.B. Rep. 30c 
^'^ 1898, § 56 - ^ ^ ^ 

3l>eG. &J. 1,6. 


Jn re J-ewensohn, 08 Fed Ren crA ^ a.« » r. 

B. Rep. 276. ^ '"■ ^'^ ^ ^"- "^ '^'P- ^99. See also In re Clairnione. 


disaoorove the election. of the cases have held that the 
'r^frthat the vote is influenced or controlle<i by the bank.^ 
in his own interests is no ground for objecting to it. The only 
mode of raising such an objection is by opposing the approval of 
rhlclioJlther cases Le allowed the chaU-.e o^^^^^^^^^^^^^^^ 
so cast" while one of the more recent cases held that the referee 
may c t'her decline to receive the votes, or to approve the elect.on.» 

The present Bankruptcy Law has very carefully defined the 
qualifications of the trustee: 

"Trustees may be (i) individuals who are respectively competent to per- 

their charters or by law to act in such capaaty and havmg an office m 
judicial district within which they are appomted. 

When the bankrupt is attempting to control the election of the 
Tslee he .s usually sufficiently clever to select as h.s 

r:!;dtidual of p'ersonally irreproachable ch-ct- ^^^^^ 
fectly competent to fill the position.* Concedmg the vahd ty ot 

le Genera' Orders, rule XIII. how can the -feree -thhold^. 
approval to such a candidate if he is the -^-J'^ ^^ credlrs? 
lenged vote of the majority in value and ""^^^.^^ ;^;;^ ^^ .^^^^^^^ 
The discretion to approve or disapprove which he may exercise 
Lt an "rt^l^rary power. It must rest on the basis of some pro- 

^Tr LteelTuL not disapprove of the choice of a trustee by 
cred tors, nor should he interfere with, or influence such cho^e 
except uUn clear proof of incompetency for performance of duty 
or non-residence."? Even under the Act of 1867. m which, with 
or "°"-'^"r"r:.^,e ^as no specific disqualification for a trustee. 

. Falter .. Reinhard, 104 Fed. Rep. .9^. 4 Am^ ^ ReP_ ^^^ '^ 
« Am B. Rep. 15S; Re Henschel, iupra; Matter of Law, 13 Am 
^ .Dayville Woolen Co.. 1.4 Fed. Rep. 674. 8 Am. B. Rep. 85. 

« Bankruptcy Act of 1898, § 4S- , . B Rep, gj ; Jit Hen- 

. Boston Dry Goods Company, 125 Fed. Rep. 226, n Am. B. « P 97 . 

^rBumCBanUruptcy. ,oth ed.. 13^. Cf. also E. parU Sheard, L. R. x6 Ch. D. X07. 

; fp^or;': hX^Pted an umawful preference. Act of 186;. S 5035- 

elect/oa; of bankruptcy trustee 1 1 1 

in withho'd^ .g its approvaT '» h! '^''^'"'^'^''^'^ '^ was justified 

want or .apac!t. <^^.\:tf:::z::^::;:^ ''zr - 

he was assignee " by virtue of the law " i Otherwise 

only person entitled to vote for a trustee If th. f 
quiry learns that the bankrupt is cas Ltth . [" "P°" '"■ 
names, it is obvious thTT ^ ''°*^' '" '^'^ creditors' 

' "^ '^ oDvious that he may reject such votes If »»,». • 

objecUons which a«ack .he'ckcttan"' ThTg^L^rr "= 
pomtment was not made in eood faith -JT J^ "P" 

.ho« objections dealing withX pt^'nTfi, e ^ of'th' ^'"■"°'° 
so this method of dealing with our nrlw i ? ? appomtee, 
tion of the votes from au!^ „ ? '^ r ''''""euishes the ques- 
the trustee eTelted ' '""' ""^ "''''""'"' "' d-Wroval of 

.e,I«Lrr^Xt«Lln%'fra:a'r"''''j *° ''""''-- ^' '^^ 
community who hrtrenltTrtetr'S "■\'°"' 

tion for the reflrw to reso«To ""Z' '"">' "" ">■<"= 1— 

-stee. In fact;:h«ri"i o s"2rtLiorrrai"^ °' "' 


creditors. When a referee f nds th« th! h t '' .' ™"' °' "" 
direc«, controned the vol^he «rtLtteTrld1.r^did' '■": 

■*' Boston Diy Goods Co.. j«/ra. 


i ,Aae^ reiect false votes, irrespective of the candidate for whom 
herarelst iX such cases i^ is the duty of the referee to refuse 
these vote without passing on the qualifications of the appomtee 
Moreover, there is an additional advantage m rejecting the votes 
Moreover ill trustee If the court withholds 

rather than in disapproving of the trustee. ^ 
its approval, it can neither declare the nval candidate «l«<=t«d. "or 
a;poi't a t;ustee of its own choosing. It can -^^ -^^ ; ^^ 

Z blrrrhe in'd^epTndcnt^reditor. will control fe^^^^^^^^^ 
and the court may be assured of a competent official who is tne choice of Zse c.^.itors of the bankrupt who are alert in 
rJr owTinterests and have no ulterior object other than the best 
possible administration of the bankrupt's estat.^ ^ ^^^^^^^ 

S3 State St., Boston. 





.he'eiurn;;:,"! «„:;:t,T o7t" "■?' "">" '"»"■" '» i«'i™ 

common law coT«, mTrd^^ •°'''''"'' '" ""' '"''"^ ''" 
founded :„ the main „„!'! ."".f °"""'= " » ='al"«ary one, and 

When no. j„s.,y o/LsrabrZ eV^'Z'^" ',' ^"""^ °'''°"' 
evidence, a eause io, canZh, f fj""" """"^ " '"'= "' 

regarded by many as fe„™" H • ''"' "P°" '■•• ^"'""'gh 
grown in.o favor ^i„cV^rdrhf ,'"'?"''""=■ " ''"' ^"''"-"y 

following forceful words : ^"^^^ " "P°" »'■■• '=6^1 V«em in .he 

manner in which .hey eprefe„ ,S^^, "^ ? """"^ «°°'' ">» """S' '" ■>.» 
ineq»i.y as a defence! an", Z^'^ .'a c^^LXra'" '=' "" "'' """ 

ca.t'o;;"ht^drc«l1s":7: "-= "-'.- °f --^ge in .he appli. 

one relying nponl'ta rhrtamTp'S r.'.^ .t '"^'"^ " '*= 
or assumed s.a.e of facs, were «Presenta.ion, 


' ' ^'-^^^^^i^ » ' Black. W?^ ^T^Tl ;^ 

a •' 35 *-an. Supreme Ct. 133, 





resort for the Dominion can settle, a question of ^-^^'^f^ 
importance respecting forged paper d.scountcd by a bank. The 
judgment cannot be said to be satisfactory for two reasons F. st 
the court was a divided one, three sustaining the judgment of the 
inferior court and two dissenting. In the second place, the amount 
of Ihe judgment assessed for the plaintiff (below) the Domm.on 
Bank, was to manifestly inequitable as to suggest the odmm 
Lord Coke designated as attaching to estoppels gene.r.lly. A some- 
what detailed account of the facts of the case is necessary m order 
to form a just conception of the decision. ^Tnrnnto 

The plaintiff is a chartered bank having its head office at Toronto. 
The defendants. William Ewing & Co.. are a well known firm of seed 
merchants in Montreal. One Wallace, managmg clerk of the 
Thomas Phosphate Co.. of Toronto, finding the ^o'"?^"/ >" °^^ 
need of money, on August 14. iQOO. forged the name of W.lham 
Ewin- & Co. to a promissory note for $2,000. at four months. 
m!d"^>ayable to the Thomas Phosphate Co. at the Dom.mon 
Bank Toronto. Wallace, on August 15th. procured the forged 
note 'to be discounted by the said bank, and the proceeds placed 
to the credit of the company in the bank. On the same day the 
assistant manager of the bank sent notice to Ewmg & Co^that their 
note for $2.oL. in favor of the Thomas Phosphate Co. would 
fall due on December 17. 1900. and they were requested to pro- 
vide for the same at n-.turity. This notice was received by Ewing 
& Co. on the morning of August .6th. On the 1 5th. the day of 
discount. Wallace checked out part of the proceeds, so that at the 
close of business, on the 15th of August, the Phosphate Co. had 
at the credit of its account, at the bank. $1,611.65; by the i8thr 
Wallace had drawn all but $70. 

Ewing & Co. on receipt of the notice sent them by the bank. 
on the ,6th. at once telegraphed to Wallace, whom they had per 
sonally known, asking what the notice meant^ On the same day 
Wallace telegraphed from B-^on to & Co.. saying he was 
coming to Montreal and would explain why the bank held the 
note. On the i8th. he telegraphed again to Ewmg & Co^to ar- 
range to see him on the 19th. On the last named day Wallace 
reached Montreal. ..nd then made known his forgery of the note, 
and promised to take steps to retire the same at any early day 
and begged of Ewing & Co. not to let the bank know of the 
forgery Wallace failed to make good hL promises. From tha 
time for nearly four months an active correspondence was earned 

T.-fKr lusiuuiiii''.' 'EM- iiii<i imiiii' i a<i 


on between him and Fivinrr Sb r^ \xr .. 

raise the money, and b scccht.. th '" P''^^''"^ ^°^ ^'^^ »<> 

they urging him with tteat ^d )lTr T '° "°''^ '" ''^"•^•' ^^ 
agreed. Wallaces effo Lt ' ^ .""^''^f' " »« retire the note as 
On December 4 ,9^ ie L'r"'-'^ himself proved unavailing, 
the note would mZ;o„ De" T'" "u''^' ^"'"^ & ^o. that 
'•f they would VTXIZZ''^:^^: '''''' ^"^ ^"'^ b<= obliged 
Ewing & Co. wrote fhe ba^ , f '"'• ^" December ,oth. 

note, and on thlsam. ,, . ' '"^ '''"^ ^^"^ ^'^*^ '"^kers of the 
formed the "ba^ ToVLZT^^^^'-'I': T' '''^ ''' '"- 
the time the note matured O^ > k u ^"^' '^"^ country about 
fendants denied the makin. J T °"^^* '^ ''''' ''^"'^' ^^e de- 
claimed that if the si^aturc T'' '"'^ *^^ ^^""^ counter 
by their conduct frordenyi„r:t ' ''''"' ^^^^^ ^^ "^^PP^cl 

the note wilh fnterrst'aToun^ tt "fo t ^d '"" ^'"°"" °^ 
tion. The judgment did nnf .. > * '^ ' ^'^'"^^^ '^osts of ac- 

of the forged n^^^ ' t rfeX: rut^'K '^°""' °^ ^^^'■«"''- 
ants being estopped bv their ., ^,"* ^>' '''^^son of the defend- 

the court hoidin^k to L the ,;"fT '"T ^^">""^ ^^^ "^^^'^-S, 
has been forgedfo' ilr^ he hol'^'f ? /r^T-^'"^^ "^'"^ 
the fact promptly after becomingt're f ' ^TtH T'T"* ^' 
son becomes liable upon it if K,/ .' ^''^^ '"*=h a per- 

.he ho,d„. posi.,-.„ n=:^d Vo^rwr/ "''"• °' '"'" ""y^ 

men, could not be supBoId „^.T- '^"P'"' ''=''' "■"' "■= "•■'S- 
other ha„d, i. coJ'^'X^^^^r'^lf"^ °" '^^ 
after referring to the conduct of ,T jT 1' '^'""'f Justice Moss, 
to shield Wallace, he d tha °Vf "'?"''• ''" *'" =""^"'P« 

H ma, h:;e';fsrate^"l?"retr'*Tr"°^*'-' ^•"<'^-''' 
forged note was pre^en eH fir H '',''""°=" *«■ "k'" ">= 

Phate Co. was prLt;cTwX:""H;t'';Lt ""^ ''^- 

e^crtSSa:* 1 ir '^^ - h-ir j 




upon the representation of Wallace; that the note was d«wn °n * 
Toronto forn. notwithstanding the defendants ^^-^^^tZ^^^:to 
that the note, apart from the printed portions, was filled up in two 
different handwritings, facts that -uld reasonably awaken susp. 
cion; that the notice was not sent by the bank to & Co. to 
eUcit' a response as to the genuineness of the f g-^^; -^j„^^„^^ 
the fact that they did not receive an answer to the notice in no 
way "fluenced the bank as to the disposition of the balance of 

^ircLnsdoi Slf of the appellants contended, that they 
were entitled to a reasonable amount of time to make ;nqu» m 
Irder to satisfy themselves a forgery had been committed, and no 
dutj to speak was cast upon them until assured of its commission 
thaTwhen such knowledge was obtained by the confession of the 
o ger on August x 9th. the proceeds of the note ^^^J^ 
stantially withdrawn; and that by the silence of the defendants 
after the 19th the position of the bank had not been materially 
aU red fo the worse. On behalf of the bank it was contended 
there was evidence to show that prompt notice would have enabled 
^ZZl by refusing payment of the forger's checks, to have 
etained ; pa'rt at asf o'f the proceeds of the note as well as other 
money" afterwards withdrawn by the forger, and want of such 
not'eVvented the bank from taking civil or criminal action or 
other course against the forger before he absconded. 

The judgment of the Court of Appeal of Ontario was affirmed 
bv tie Court of Appeal for the Dominion of Canada, two judges 
dLentingrMr. Justice Nesbitt in his dissenting opinion, after 
c nlulg that in order to create a duty on the part of Ewing & 
Co to notify the bank that the note was not theirs, the bank 
lol h^ve'given some reason to Ewing & Co. to suppose that 
it would be prejudiced by their silence, proceeds : 

„,ho„gh they h.d no. -^= J. "f'',* „tj "^^^ a « in«nd«i .o 
part of th. clerk in the bank "'S" f " J " ^^ „ ^^^^ 

be drawn upon them, ■- "--f^^tett'^^^^^^ ceruMy lead 
a cdme had '^f^'^l^^^:^.,^. ,^d that d,ey were jns.i«ed 

• ' 1 See Ewing v. DominioD Bztik, supra. 


Sd:Lit'^,:^;rint7wt\" '-'' '"'''''''- '' - - p- 

notice until the .oth o" D^^Z? 'T " '° "'"^ '^ "°^ '^'^"^''^^ 
extreme altruistic Wew referred To^ i^ E^rirH*° "\'''' "'" ''^^ 
page 38, does not justify a court in ^J " '""''^ °° ^''°PP<='' 

did not sign when the neirK "\ "^'''"« ^ ™«« P^X a note which he 

the genuineness of he '^Zj'ltT'^' ''" "°^^ '^''^^ ^^^-'^ f- 
counting it and did not co^rnVarin ' "P'^""^^^'- ^^ ^^e party dis- 
such communication, with thrp^l^XTfo^ c^^ °' '^'^^« "^^ 

The counter view of the case «,ac k .a 
following terms by Mr. Justice Kiirar^:'^ '"^""^' '" ^*^ 

whi^si W unde^eSirci^rumr '"'^'^ "'''"" ^"^^ P""-P'- "Pon 
bank direcUy notified hTSeSsTt tf" "" *° "" "'°PP^'- ^^ 
office on a certain date and r nutrd thl?' °°'^ ""^' '^ '"^ ^^ '^ 
distincUy implied that the S had In . P™'"^' ^°' ^''^ ^™«- This 
behalf of some one else m tt payttn ° fT"'' '"''"^ °' ''^ °*" °' °° 
WhOe there was no inti^aln tha'Te tl JT^^ '°' " ''^ ^^""-eness. 
to acquire the note for vre the def^ ) ""'^""■"^ °' ^^^ P™P°«"« 
know that the bank might ha i dtoutedT' "^ "'° °' '"^'"'=^^' -°"'^ 
still at the customer's credT or Zf. "°'" '°*^ ^''' '^' P^°^«ds 

They would know that an imL^ I i '^ '* "^* advances upon it 

withhold payment Tj^Zo^uT. "''''''. "°"'' ^"""^ ^'^'^ ^-^ ^ 
of any sums not already a^^d ThevT ' T '''''''' P^'^ °"^ «' 
such note, that they had giveTno tthlH^ f T "^'^ ^'^"^ ^'^ "^d« "o 
at once repudiate i^'and tS^^did sot tS M ' "^'*""- '^'y -"'^ 
further infonnation was necessl for thit ' ^^'" '° ^'^ ^'"^«- ^o 
ager placed the proceeds to Te c^dit orr'" "^'"'^ ^'^ "^^ ™^°- 
and took no precaution agaLst th^Jrtl ''^^/»«»°™«'- without inquiry, 
from the defendants, the S did 1 ^"^ ^u'^ °"* '^''°'^ ''^ ~"'d he^ 
sense that it did wiat it^„. u "f °" '*'" defendants' silence in the 

done if the defend^"' L^tlTS::^^^^^^^^^ '' ^"'^ - ^-e 
balance of the proceeds to be withdrawn;.' ''^''""' '' ^""''^^ ^'^^ 

Special leave to appeal from fK« c 

case. Crra s„mma Iccuta ,s, ■ ,^1 J , ^ '""= '"''' *« 
.■«y strict justice has been dote'? T/ "'' ^"^ "■"" "" 
ha'd one for the defendant ;,,^:;,fj«- ^ P^J-'^'X 
own seeking or conctirrence infv. , '"""glit, not by their 

bank and fne of its ^.o ' ^ WheTth": 'nT"""? ''"" ' 
-hed .he™, on U,e „o™i„, „, JJ^^, '„-;-« ;e^-_d^^o 

! i 



1 • .^ «f had in part been done. When, on the 19th of 
complained of had in P*" ^ of WaUace that their 

August. ^^y^^^^^'^'f^'JZXd^^^^^^^ by him. the 

*u „ «,oV-*. full reoaration for the entire damage. 
"""L^e damages ai:!^^^^ by the trial judge were neither exem- 
pla^ for punilve. as in actions for deceit or «n-«P^"f ^f^*^ 
Se^udgment can be defended only on the ground of the apph- 
«tion of a rigorous rule of evidence, which excludes a finding of 

to, m the '='°"'°8„"°;.^ter«exibmty introduced into 
TT:::Xr^^ jS^J:* let, ^y eve.t„a.>. .ad .0 an 
alteration in this respect ^^^ Alward. 

St. John, N. B. 

1 8 Ch. D. Sifr 

I^^^^Y^^RdLaw Review. 

P"b,i.h.d monthly, du„„, ,h. ^,„.^,^ ^^^^ ^^ ^ 

Edwin H. Abbot. Jr.. 
Francis W. Bird, ^^ 
James N. Clark/ 
RoBBRT B. Dresser. 
Mansfield Ferry, 
Felix Frankfurter. 
Archibald R. Grauotein 
Matthew Hale, ' 

RoscoE T. Holt, 
Waldron M. Jerome, 

i-(i<ioritU Board. 

&s v»r '""--■ 

Robert N. Miller 
Elihu Root. Jr., 
Hugh Satterlee, 
Harry F. Stambaugh. 
William D. Turner. ' 

o!-r*° ?• WALKEk, 

3N r^ ^- Warren, 

John H. Watson.""' 

The Laat ScHnoT ti._ 

Ret. Grad. . 
Third year . 
Second year 
First year 
Specials . . 

Res. Grad. 
Third year 
Second year 
First year . 
Specials . 

«^-S .895-6 I896-; .^^ ,^ ^^^^ 

• I 














545 548 






"T' "^'r '^r^ '^^-^ "<>4-5 .905<^ 






















r.phical diittico : ~ ' '»'' "to Previom coUeg. mining and « to^ 

n' ■ 










Clan of 































Hakvakd Gbaduatbs. 

New England outside 
a< UauachoMtts. 








OuUide ot New 













New England outside 
of Mauachusetts. 










Outside of New 







From Mas- 











New England 

outside of 







of New 


















Total or 







si, having ""J'f / jS«„'°co^™. md univemtie, have represenUUv., 



one hundred and eleven thp nr»„- 

St ^? ""'^-S, t Porrir^Jih '■'^ ^''^.^^ty^' class sixty-Sve 

Princeton ,o; Bowdoin,8; \&mVfi . r' ^'°^"' "' I>^mouth, ,, • 
SeS"Pif ' C^"^°™i-.CaS'^^^^^^ Clark, Hamilton; 

Amherst, Central, Kansas StanfnrH A'u- ^ ' University, lowaColleee j • 
Austin, Boston College,^'osTon tSeS -?'' '^''^°"^'"' ^^ ^-SA' 

Zf Pjf^^"?* in the School eTeven^afSh^r^"^ WheaFon, , 'S 
uxford, Pennsylvania, St Louis, Stanford ' University, Maryland, 

i>m._Like so m^ other SSdr"-^ ^"^° Contingent Remad, 
of vested rights is hardV edudWe evenTn ^'^ °^ Constitutionrir,^ S 
S'V/>" Jf. generally drawn between " vest./"''"'^ '"« '^"'^""'°°- The dis- 
cies,' which the legislature mavfrJf^ •'S,''^' ^"^ ™ere "expectan 

Efin? •"I''"^^ ''^^ -^-SL^lteTZ'\ ?".«' various p?op?rty 
being inalienable before assignment ^Z l r^ legislative mercy. Dower 
or destroyed.^ On the oS hS S/ '^Z"" ^^^gn-nent be dimSed 

^^7J ^^ispute. Yet sfnce cutl/in'S i°' ^'^^'^"^^ contrd over 
able and subject to debts though fl.» " '^ " * present interest alien 
doctrine regards it as a vSed rilht* t^^^^ '' postponed, the Ser 

riS of "''^'^'^ ^^ *'f« ^ choses in actk,n to no"'^'"^ °i ^^ *=°""non 'aw 
ngnt of survivorship in ioint tpL\! • " ^° possession.* Aeain the nW 

fi^eS'o?,''^-"?'"'" ^--S1nc;rm";%"lr^^^^ ^ dSo^ed^by 

field of legislative control is found S?L i ^^^ ™°'' *'dely recognized 
tabution.' Inheritance is a pSl^ nnf i^'f^S°veming descent an^d S- 
testamentary beneficiaries have S'a ,~ "^''!; ^^^ Presumptive and 
taking under existing expressbn, of ^ ^'^"*' destructible oopoSunitv of 
position of a deceasfd's^ropert; °^ governmental policy as'^o th" dit 

sute exacte a b'Sy^of thTnLV°" "r"™*^™"^ '"heriUnce taxes ^ Th. 
« a tux on the priK of ^an-"^" P'°P"'y ''^ ^'" or intestacv T? 

1 r- i-„ ^ ' - — ■' ' 


vested and comunjcui. YVhether a remainder is y^'"-'=" , .u imme- 

into a ^g^'^^jMf. heirs " the state may, pnor to 't^ ^f ^"^jf'^f ^^y person is 

for permitting to conunue. 

_ „„ Witt In Considering 

LAW GOVERNING POWER OF ^^J^Z^^^^^^- ^i a testameu- 
wh^tTaw determines the su^^^^^^^ questions are mvo ved^ 

tary power of aPP°i^^™^",L°r^ to exercise the power, such a wiu « 


Sade by the testator ^^^^^ ^he instrument in question « 

In both England «»J *5f„7^ade in accordance with the law on 
held to be a sufficient '^will U mau -__ _ _ 

. Matter o£ Seamxn .47 N- V- 69. ^^ carpenter .. Coounonwealth, i, How. 

* 10 Matter of Pell, 171 "• „• *Iote. 
u 21 L. Quar. Rev. 118, "9. n°«- 



domicile of the donee at hi« H-,»». i i^t.- 
of the broad doctrine that a ,S^I of moTaSer k-'k^"'""^^ «PP''"t'on 
the testator's domicile at his dea h°s SS otlT. ^^ '' ^'"1 ^^ "^^ '^^^ o^ 
by a further extension which is estabShed hv »k''°'"""u"- ^" ^"g'a"^. 
o pnnciple, the power may also £ exerds.H f ""'"'"'.r ^"' ^""^i^'^d as 
la«r of the donor's domicile.* A will no rlr^ ^ """ ^^o^fonning to the 
donee's domicile, but admitted fo ^rik » .^onfonnmg to the law of the 
capable of exerc.n, ^ ^^^^ ^u£%tS^^,^^^^^^^^^^ 

inl'tl^SrSyrt'oVtrd;^^^^^^ ^^ ^^-rmmed 

rests on the theory that the donee '^J meTdi th/ '^' ^°"°!:' '^^''^ ™I« 
rr.,»^°"°i: ^«'8"at« the beneficlLi who mW« ^T^ l''™"^'' *hich 
creatmg the power and not under thJt bTwhiS, »! ""'^^'' ^''^ 'nstrument 
In an English case, however.The lal Vth'V^^ P^'^f '"^^^ "^''^'sed.* 
to govern' The decision in h s casJ is not i^"!"" ' ^°™'"''*^ " ^^^^ 
decisions, for the instrument in nuesHon L^ '° ''™"« ^^ '^e American 
power by the law of the donor'? doSle an"/. \r? "^^"''°» °f the 
domicile powers of appointment wer^nntn *°n^^^ '^*^ ^^ ^''e donee's 

-hat of the dono^s-SSi^Sr T^^iZ^^^ 

con^smuXnlS^^^^^^ the will 

^^"^^^do'nicile. seems sound.^ Even /f tl^ dnf ™"''' ^^ ^'^^ '^'^ °f the 
donor, he has an option of exercisin/the nn ^^ 'I t ""^ ^««nt of the 
respect is not subject to the doSs^coJtrol % '"'^ ^' '"'^"^'°'^ '» this 
he power was exercised or not, Se intern on of?h.1."''''°" ^^'"S ^''^^er 
test. His intention, however, mav not ^^1 • ^^l ^°"^^ *ould seem the 
common case the will makes n^rSnce to [he '^ "'"• ^"^«^^' '" ^^1 
over which the power is held buV thP rni i P^*^" °' *° the property 
cution of the power may Kind i<:tLf/ '^"?"^8e from which an ex7 
intention does^not cle Jy appeS,^b^t ts t'l^i";:;'"^^ ^^^^^ ^^ere "« 
the lanpage of the win, the law which %^a u ^X implication from 
found should be the law ^Ith re2rd to whth Ik' *'?»*''" '' *'" thus be 
law IS presumably^ the law oiT^^^^J^^Jt^rtl^T^''^^ T''^' 

Duplicates as Primary Evinpvrp a 

i P'Huart V. Harkness. ia p-,„ ... . " ^ 

-^-^ —^-^"'6 t»r any other.' I n this 

• m the Goods of Huber TTs/^i n , f*- »• joo. 

♦ St. 24 and 2c Vict. c. im. 8 t. / . i- k. i P. 


♦ St. 24 and 2c Vict. c. 114. § r. / . 1- k. i P 

» r>7- D • ^et'lement Trusts. 

Wharton. Con*ct o^Laws, ^d ed.. ,3,5 
2 Wigmore, Ev. § 1232. 


i.»„tf AT the term duolicate signifies more than a mere copy : 

if ,h. parties to a t'l»''?' '""'»'' ™'Xe h",copy without acoouming 
each taking • -=7J;f '''^2 '„"7tKh hirow,, sigl>.t»t. h^ lacking 
^i^'^hStoslmin* KS ST. U f. Jbviou. that .-Shing depends o. 


make a copy oi nis ^y-^VY" „ . j^j, operate as such. The 

cateorigina merely by "intending that th^^ P ^^^ ^ 

question will now depend on t*'^ "^*J" °irifnrseems to be drawn between 
duplicate has been produced. And here the ""^ f J™;J° "! reproductions 


*' =»«)«'"' f?^i^,,/J':;frhepSuc.lono( both is practically in- 
pnnting as *l,''""J;''''^',h,„fore. may properly be classed •vth 

balanced by practical ^dvanta^es It h^^^^^ 

"luTrthftS thT'b^th instruments must be made by the same me- 
But IS me xesi uim ""' i/.n«»mress conies are uniformly accurate, 

S^S«SSS[e^^te^SS = 

t Toms V. Cuming, 7 M. & G. 88. 

• Nelson ». Blakey, 54 Ina- *9> , .. 
« Lewis f. Payn. i Cow. (N. V.) Ji- 

i Leonard v. Young, 4 A"- (N. B.) rit. 

• Cleveland & Toledo R. R. Co. p. Perkins. 17 Mich. 296. 
» Nodin ». Murray, 3 Camp. N . P. «». 

• Rex V. Watson, 2 Stark. N. P. 116. 


author, and invenC by m^lnTnf ''^ **•" Constitution,' has ScureT^t'o 

S ^" '^''° "■='" '^'^. "ndtte Sh'T-v" """" «rui„ Si: 
Ohv;«» I • ^"^stion tend toward i^e^^Jy u ^* *"' " whether or not 

The position taken bv th^ r a i ' 

copyright and patent laWrnn? '^°"'* '"^•^"^ eminenUy sound tu 
covered by them -but ,>«« " ^ monopoly as resDe"ta thJ^ ^^^ 

standpoint, especially undesSble S *=°™?"'ations are, from the ^ubHo 
toteraW.. The monopoly pSl of ,h, „ T^' ?»Pyrighl and pateni L« 

3 U- S. Const. Art T CO -1-J I ■ 



of the illegality. The iUegaUtj oj^a rSS^^^rthTSSaSonrd 
nght-holdcrs and !»»?»»«» **^^^ i^*f!lTu would, were the property .n- 
its members just so far and only »o.»" "^ " * . ^hus a contract licens- 
volved not the subject of patenU a^^d ^^jj^",' iJ,„ce of the unlawful 
ing the sale of a patented article, ""ff * '"."^""nf^ceable.' On the other 
oblects of an "l^gal combmaUon is heW unenforeeab^^^^ of a copyright 

"ii^^t^'A^^ r^^^^'i an iulgal combination or a 
member of it.' 

TT„,.™T^ Qtates. At common law and 


in some of our sUtes, «»°PIf i,J°"i^.,"^' ecoS "pplies to the state or fed- 
It is now clear, however, that "'OPP^I^^J/^^^^^^^^^^ for taxes due 
eral government. Thus, when a J^.^^^^^X/ action to recover an alleged 
durin'g certain years, it wj. ftoPPed'n another acuon ^^^ ^^^^^^ 

balance for th= same V^^"^' X*7_v3ent. Thus, where a state, for 

deed may be set up *8»'"2 .^!^f f° ^Tn Sen, his heirs and assigns, with 

valuable consideration, f f"t«=f , *"^ '^i^Jaw o" the grantee or of his heirs as 
warranty,itwasestopped tosetup he^>en^eot t^^^^^ ^ 

ground of an escheat.* Estopi^el tnjau, or equ ^vv ^^^ ^^^^^^ , 

lovemment. however, ^^^.^''''ZTco^ririlAiVi analogy in the rules ex- 
In '•-upport of the prevailing ^^'^r ^°"I^if .^atute of limitations and from 
empti^g the sUte f om the ope«»'°^^^^^^ exempt not from any 

the doctrine of laches. But the governro ,.^ g^^j.^ 

notion of extraordinary P^f °8^tive, but f(H rea^ons^t p^ F ,^^y ^^ 

the fiscal transactions of the governmentjes^^^^^^^ ^^ ^^^ ^^ j,^ 

scattered, it is apprehended that the utmost ai g ^^^^^^^^ ^^^.^^ 

government might not save the ?«>? ^^s S univer^l justice. " When 
Istoppel in pais, ^^^f^'^'^^^'l^^'^^^^^^^or^^sX dealing may become of 
matter of estoppel f'^^'theob^^^J^'^fthe public domain." " When the 
higher importance than the P'^^^fTf °" °' ^^^^^ it is subject to the same 
government engages in commercia transac'ons, .^^^ ^ ^ ^^ 

bws that govern mdividuals. Thus ^J^^ " ^ ; ^ individuals in a similar 
paper, it has the rights and ^su™e th%liab^ o. ^^^^^^^^^^ ^ 

a. G^a^b"etrcS°.^Sr„f'.^^ Si..^l?;'5^uia Powder ^o. .. Hcrcufes 

• ^Tt5iS:^;S. ^: sawyer^- -' S^'^^^.^^^^^^- ' B^ 
.,. Green. 69 Fed. Rep. 333 ! <^""g ?'"gVed. Rep. 130- 

4 See People v. Brown, 67 HI- «5- . p „ Waeon-Road Co., S4 Fed. Rep. 807. »ii. 

59- „e Fed Rep. W ; State v. Flint & P- M. R. R-. 

T See united s»«V,v" 'Hed rU ^9- 
89 Mich. 481 ; SUte V. Milk, n Fed. Rep. 369- 

Barker, 12 Wheat. (U. S.) S59- 
T See United States v. ^tir 



authority. Wh^r*. r *"'^ ''^^e acted within ,k1 '^•"^ conduct 

ciple with extrem^ 1-! !^ '"" '" '^ 'Reeling their wav a^^ P'?**^ '" f"" 
"in » proper ca^""SS.''.'-'™"°° "»» •!>/*" nifeiffj 1° «""""' 

actual seizur*. ct \X: • . °' Protection rather sfnVfi,, ♦ • "' ^"^ <^ases 

for th': sclera: 's-".if °^^^" ™"« -^ o^ff t^ n ^?^'"^''^' 

shape and size but forTh. r °V''*'/^'"^'"der caused bvM. T"'?" ^"'^ 

7^;^^^^^^^^;;^;;;:::^ lij^^fj^construction 

» Commonwealth r. PeieDomf .« m 

Cent Co., 40 Minn. i68 " ^ ^ <^*»> 5o N. J. ^'^ „.. ^^^ „ , 

•Bangor, etc.. R. rTco. j,. McComh ^ „ ^ ' °" *"• Wisconsin 

%. Co, ,03 Ma... .0. "^^^-b. eo Mc. .90. See Walker .. Old Colony, etc. 


,,8 • HASVARD LAiy KEi^ret*'- 

upon the constitutional vy^r^-^f^^.^Zcon^-"^^^^^^^^^ 
atiuitional sense, say many '^f.P*'^*'^^ * f"d "" Hence several decisions have 
Und, but in the right to use '^ "njutarbed. " JJ'J^ ,., virtually made 
Sled that a taking which wiihout »"J"'^^, ble, « by a flood of water 
Se enjoyment by the ^^^'^^^'^^'XhdVSr^^^^^^ « property, the 

or of sand.* Others more broadly hold tnw an ^^ ^^.^^^ 

taking of which n^V^» ^ P'"'^ *f,o„£on^^^^^^^ material abridgment of 
cases proceed ^""W lead to the conclusion y ^^^^^^^^^^ 

rightful user is the uking of P^oPf "J:„^, tJ. leajslature had attempted to 
SSghtbe had for all ""•^^""'^S^;^^^^^ eninyment ol 

«ufctionthem,sofar ««.»»^^ey mterfcred wun^ possible the -olUcl-onof 
an individual's Und or chattel. This wo"'^^» J^ ^^^i is s.u.ned near 
damages from a railroad company by ve^^ "any ^ . ^j,^ ^o^ns to be 
S"inl Such incidental Offered f^ he co^^on ^welfare, and which 
of that class which must be .su'feT'^^ J°VXts of property recognized and 
2e too slight subsumially to impair th= "ght ^^rope V^^^ -^^ 

protected by the state. 7****/^'* P;?* anal phraseology has already been 
LybutastrictinterpreUtionofconst,t.Ui^na^P^^^ KX^ ^^ ^^^^^^ ^j 

indicated, and that it >»7\jf„^^" ^^^^SS constitutions and sUtutes, 
public welfare is shown by th^ ^u^^I^^perty is taken or damaged. Even 
b^ aSl^::rZr^:^^S:Jvro^, ^eave many m^red 

for an authorized nuisance the "^^jn^o^/Jf authorization that in a recent 
tinized. It may be i-ecause of f"ch warn oi personal mcon- 

Tixas case a householder was allowed to ^^^o^J^r ^ ^^/^.^ depot near 
ienience and annoyance ansmg from the opm .on ^ ^ ^^^ ^^^ 
her premises. 5/. Zouu, etc., ^ V/'/: ^ j^^^^ enactment necessarily 

tiv. App.)- A.line of tracjc f horued by lepslati ^^^ but freight 

kX^""^ ntiS^cfdr^^he^ improperUion the r.U 
road is unquestionably liable.' 

5'»v£;:!:o..» B., c«., .3 w... ,u. s., .«, ...-. B»». -- -. 

n s« Aldrieh r. M.>.o~U,... "'Vj^lR^f J^i'l ".i't. S. 3.7 : """'rt* 
. B^amore, «e.. R. R- '^S-'in a?C ci. of T'"" '■ And""". " ''■ '"' 
R. R. Co. r . AMol. ■•/»» ; Musoun, etc, Ky. v,o. 
731 (T«x, CiT- App.)- 



In withhold ng the be efinir^. . ' ^4 ^J- Y. Si.j.p. ,099. 
decision is undeViaWy corfea ■ r ' '" ' '" «'gacy from the legatee the 
that he should hold iL'neSv in'rScc ^I'T' '' '*=^'' ""'^^ '-^^ 
contrary in the will, and hisow'i Ten Licence iifh."'''!" P'"'*'''°" '° '''^ 
^y back of the legacy. A trust ?hen ^n^ ' * °''!' '""''"ct'ons which 
m h s hands, and the only oS iueslion i, wh^'T^I ."P**" '*«^ P^<>P*«y 
to this question there are two wd^known th ° ''l^"''' ^ '''^ '"«/«/. A. 
having in himself the legal and eoS^-"'- ^"^ "' "^^^ "'^ »"t«tor 
only thclcgal interesl S the Sf'^^th^ Thf '"/^^ P^P"'^' ^^ 8^^« 
crattve. because, without being dl eJeJuted Th'^rr'^"'' ""^ '""P" 
they purport to dispose of the teSr's Sifiri, • ?* »«'amentary form. 

against Mraself. he therefore coud not have llJr ^"^ ** "«^* ^^ ««'°" 
nght. The full and absolute ownenhio of^h? '""^^'^^^ « ^ any such 
passed to the legatee. The legale howL/ h^K^'^P'^^'^y *'*'' *»'"«^fo'«. 
to the oral instructions of the tesSor his ml'i^ " "P"'" °' ^='' «sen 
of equity specifically perform breSS the ^fJT^"' ^'^'^'^ »'^« ^°"rt« 
vests. The oral instructions canno? hL ^n? Tf '*'^''°" ^f*" t^e legacy 
Frauds, as the trust whici ?herdecte1s on^fof 1 *° ""?'^' '^^ ^Utut! o^f 
Statute of Wills, since they effect the Lt^l / ^"^^^^y ! "or under the 
tator. They tend simply to prove ! S^o^»i m° P.^P*^"^ f™™ the tes- 
the orally designated llul ZTLsfiTy^! °k '«^"? f^™ « '^gatee to 
part of the legatee is applicaWe toTny casi whe^?l7 °^-1. ^""'"^ on the 
are communicated to the legatee Se he tl.rn'j*' T^""^ of the testator 
IS on Its face qualified but when it is absolf.M • ^f "°'.°"'j' ''^^" »^e beq^st 
however, there is some dissent" ""' ^^«° ^^ ^ ^i^t, 



SSntte'? *'\'\P "Have«Lm cXr-'' Each i'„''fl."S''r"'"'" ^"^ "« 
plaintiffs ship which made dockin? neri.««r„ *-ach inflicted damage upon the 

were repaired simultaneously. ?Se^causeTbv^^^^ the dock ^th Iniures 

plaintiff sued the "Haversham Grange "for th^e H. *,»j"ty-tr days- ThI 

I Jay'"' ": P'aine, 31 Md. 1 58. ~ ~~ ■ 

'■ fir j: t2"«: ""■ '^'- ^ ■■ °""' -*•«■. .30 «»..... , H.,d..k.ta„ 



The Haversham Grange, 2, T. L. R. 628 (Eng., C A., June 28. 


•^A^uestion is in what proportion the ^^^^^^^^^ 

two tortfeasors. It .s an E"g^'*^^;'i^°l\,^e^ecu ed simultaneously, the cost 
obliged to dock a vessel for repairs which are executeas ^j. ^^^^^ 

of docking must be divided ^l^^^^J^^^J^J^To Tchi^ Transpacific S. S. 
both are at work on the vessel Martnelns.^c. s Lnt ^^^^ /directly 
Co.. 1 1 App. Cas 573- Evidently the ^^if^lf^^^^.^^, ^ule as to demurrage, 
under this special rule. But no,«=^'*>f .'1° ," :. „£ jegal causation. Where 
which questfon must be ^^^^J.^y ^^s ad3ay o twenty-rwo davs, and B's tort, 
the inevitable consequenceof A stort isade^ay ot iw y ^.^ ^ ^^^ .^ ^^^^ 

which occurs subsequently, would have caused a f J ^^ ^^ ^^at B's tort 

with the rule as to dock dues. 

wunuici r.„„oeTT«!_ Election of Remedies for Pay- 

Banks AND Banking - Deposits -tLECTioNo^^^^^^^^^^ 
MENTOF REVOKED CHECK. - A bank paid a chec^ to tn^^^^^ i..^.^^ ^^^ 

had been forbidden bv the <i'^««;;. „^" ^"1,^!^^" Xintiff against the payee 
bank, evidence showecf a former ^^'^^^y/t^.X^kPfs liable, since the former 

'^£:r^lt^l^^'o"^^^^^^^^ Fease ^ D.yer Co. v. S.aU 

check before payment d«t5°y^/„7 "f^'enl* tKh no order had been drawn, 
ders the bank liable f?"ubseaucnt paymen^^^ bailment and the 

Although a bailor might sue both the bailee tor oreac ^^^^^^^ ^^^.^ 

receive? of the chatte! m ixo^^r^he absence of^a .spec^^^^^ ^^^ (j,. YO 
case distinguishable. See Vft/^^- ^ ^ payment may be regarded as 
cii. C22 ; affirmed in 103 N. v. 009. *"^"*"': .J '^^ ^imbson v. Eeetngton, 
t'hi'act of a volunteer ratified by smbased^^^^^^^^^ ^p.f ,t 

,0 Exch. Rep. 84s. It 'l^^.^XSvTn- payment,lnd hence a defense to the 
the payee as the maker's agent for rece.vmpaym, ^^^^^ ^^^^^ 

bank. Riley v. Albany Savings '^'J«*; f^^ff' _" jstent remedies, the plaintiff 
L that, by eW to pursue one^f^^^^^^ N Y- 450; Any 

foregoes the others. Fowler \. f^f^Ji . premised upon the bank's non- 
ac4 by the depositor a^a.^^^^^^ k%E'agains? the bank. But on 

ecessaruy IS , ^^_ .^ -hould be a bar. 


PLOVEE. - A section hand was '"J^'^^^^Jf °"k," w that he is still an employee, 


the facts of each case. It is ^^'f "» ^^at an empioy ^^urance Co. v. 

course of ^'^ ^•"Bl^yT" , eaSly evfden^^that an emplovee who is traveling 
A usiin, 1 1 6 Ga. 264. ' V^* "l"*7with the railroad is for the time being a pas- 
on business in no way connected wiith t"e '•a^' ^g g^^ ^he present case is 

senger. Doyle ^. .^'^^^*«X ^i; fn which injuries are receive\i riding to or 
one of the confusing '">^<fle ch^s in wh en inj^^^^^ reconcile most of the 

from work. A simple d'stmction that wiU^e tou j^^^enger when he 

decisions is that the employee f^^.f^J^ ""Xxcfas such, fudged by this test, 
is using a privilege ^^^^'^'^/CthewonLrwaspravided only for employees, 
the present decisTon is so""f ;i°'J;^7°3^1Tridini home on a regu'ar car like 
On the other hand, a street railway e-nploy" ^'^'' 8^ ^ passenger. Peterson v. 
any passenger who has a pass is to be cons.dered ^y^^^j^ ^^ ^^^^ ^^^^^^^^ 

^l^Tu Sak? Kv.'i^o; U^^.6.0; .7 ^/^. 4.3- 


plaintiff/Sri;^toVcoL^a^n.^^^^^^ Relation Begivs -Th. 

checked its spefd. The'"pL1n'tiff hfrat emnY'/r^'^*^ '° ^''^ '"^^^^an. who 
still m motion. Held that L ;. , attempted to board the car while it vL,. 

It IS well established that camere ol ihT.,^?' ^89 (Tex., Civ. AppJ 
often becomes important, therefore tn nit- • ''^''"' ""■« '« passengers It 
and passenger be^ns. The theory is that ITe'r ' J"'' T*^"" '''^ '•^'=»tion IfTarrier 
ance to a consensual relation not La contr^M "l""* ^? ^" "^^^ »"d an accept- 
loosely state, for it is well settled that a rarrf.*' •■^'^"°/'' ^* '^""^s sometimes 
of contract. See ^.^«// v. Sw c^T/c^M'^^f^^^'''^ '^"^^ independeX 


b^rdmg the car since ^^ ^T^^^^^^tk^-^ 

BSSTair^faTntS="Tb^ei;^"r-i[-- Dhbtoks.-A and 
agreement to take ten shff„% on the oo-h^'"-^'. ■ ' "'*'°" '"^^^'^ >" S 

g^dp-ai^?£wt^th.o^^ ,„, , ,^ 

thatwhere-?hte''ts'fe„f°a'eord^th"o'n''^'" "T'^ EnsffnTand^'mS 
agreed uiK,n has been rendererthe^ttrd Jbtor fs ''h°'' k'"*^ *^ satisfSn 
^'"™^"t w« under seal or not IhtIr W I, r '^'^^''^'•pd. whether the 
V. Campbell IS Md. 569; but see ic Harv T r^ ' ^'9°'^ ^ R. B. 642; Booth 
been found in which a coraposftion a^Lmi;.^''- ^^9.'- Several casw have 
has discharged a joint debtor not a part?S?o '°^^'"' vf ' '"^'^^^'^ ""^^^ ^el! 
146. From the facts reported in the case at hl^H ^^" ''■ ^»'knam, 90 Me. 
a long way in finding thkt it was the nrnmul u^'.^''*' *'°"''' see'"* ^ havegone 

i^ tee ^nsS^ -^i^ S- ?^^^^ 
o^gnKr^'^ ^^"^' '^« -^ "Klt^esTc^o^d^e-ra^S^^^^^^^^^^^ 

tStor? CE'DE^D'?Y~s?ATrTO*'nv^°''^"c^'*'''''^-LAW GoVERNtNG IN 

tate, while working in the U„Ued St^^^ei N^ States. -The plainti^s Intes 
through the negli/ence of the defendan w17 ^.^^^ '" B'-o«klyn, was killed 
ceded lurisdiction over this tract r,n.n^; ^^f\ '^^ state of New York in 8« 

bicom., ^'*'- ^""^^ territory, hoSr ccMesl^V^' ^^ '?• ''• ^^^'''"•. 
becomes a separate unit subject to thi l^ • • ? P*"^ o^ the state and 
government. Cf. CommonSk I c/Jrv « mL''" '""»%'«>" "^ the fede"^ 
the statute passed by the sute oYncw fe afXMhe^';«"'^ follows 2 

lore aiter the cession did not aflfect the 




U.W of the ceded territory, but as there had b-n no 1^^^^^^^^^ b|; Con|;e» 
upon this matter the law existing Y the tirneottn ^.^^.^^ ^j ^^^ to 

X defendant therefore *;« ^>«"^y the eart»" ^'*' 8°^""*"'^ '"'" ^^"W 
?u^^;%^aVr :iccis1oi ol iestioLSl Udness. V ^-« ^ /'.W. 

died domiciled in Frajice, lea,vine an unMi« ~ 
French law and which cont^ned a un vers^^^^^^ 
the power or the property subject thereto «'^ y ^ ^ ^^t applying. In re 

CO.KUCT OK LAWS - K--rN7nrcl?0^^^^^ 

Debt Owed by Non-Resident. - A Monn «- gamisheed by a Mary- 

lYna creditor, while teniporanly v.s.^ng M^ ^^^^^^ »i5VZL 

land creditor of his obligee. .^X ^^J""^ famishment judgment. Nild,thzt, 
opportunity to litigate the claim «/ ^he famishm^^^^j^^g^^.^^.^^ ^^^ 
unSer the " full f^'th and credit clause 01 in ^^^j^^ on the o. .g.nal 

*1nUng?Uadebt maybe ga^isheedwh^^^^^^^ 

the Supreme Court takes the logical step from ^^ g;«^^ j^jj^ of his debtor, 
debt owing to a non-resident may be ^rnshe^^^ at^tn^^^^ ^^^,y diates the 
Chicago, etc., Ry. Co. v. Sturm, I74 u- ^; < V" .. the jurisdiction on the court s 
artlficfal doc'trine of the «/«^ of a deb^,^^^^^^^^^ j ;„ „„an- 

control over the gam'shee-debtor. The tun .^ ^^^ j^^^^^ ^^ ^„ .^ 

swered, that the power to «l'S'-h"Si^„*^^°;°^ ^e founded only on control oyer 
tarnishment judgment as a pea in b^. "n^^^^^. r^^. .§8. The decision 
Both the debtor and the creditor. j*«« '^ «* flict as to the validity of these 
£ however, salutary in settling the dp^^^^^^^ ,„ tect the non- 

garnishment proceedings, .f "J^^'^^r^men^^^^^ notice from the garnishee, to 
resident debtor<reditor by its requirement 01 settlement the diver- 

enable him to contest the claim There ^t'U re ^^ ^^^ .^ conferring 

tl^Xt S^Sffi^e^gi^C^will^uce^-^^ 

'COHKUC OK L.--J---- ^^^^^^^^^^^ 

DEKiNG Insurance Po^'fJ^^^^^f ^^^J ^^der the laws of New York issued a 
a life insurance company /"^Xmovidhie that he receive an equitable propor- 
Jolicy in Australia to tiie P»^'"f flSed leHod, and expressed to be " subject 
hx>n hi its surplus at the end of *^^P*=^'J^sePuently the legislature of New York 
to the laws" of the «o™" ''^^'.^^n^^ng^ company be granted 

enacted that a decree for "/^^"""''"^eneral. At the end of the specified 
only upon application of the A"or"ey Oener ^^^^^ asking for an account 

pei^od the plaintiff ^^^^J ^^Sj^^^S^^sS due to him. UeM that the New 
|Vrk%r"uKa ^Vfo^ dif ^Sff-rbfu. Mnson v. Mutual Ufe Ins. Co.. 

' ^Wh^r^a^ln the present decision the P^^^^^^^^^^ 

admitted y valid under the laws of the place otcontracng^^^ ^^^^ 

only, Stuati v Afutu/ii m* a 

Transportation Co., i f r Mass Vo^ ri ^ the forum. HoadUy v. A't>rX«, 
to be a part of the^omract the Jlaimrff's^ '^1^'? statute-^s inVer^ret^ 

clause in the policy is amb guous and if rn^^'^"!f ''^ '» '" New York. The 

nsurer, according to the general n,^^. coastrued most strongly against the 
^on of procedure restrictlnl he remed%of7hl"°' '°r'"''«= ^ »tftJ^to^ reguk 
But aside from the statute L court mtht^Jo''l1v''lf'' *°/ ^?'"^'^" Juri^dicS. 

».,!,- «.u"Horaiion lor douhl<> Hi» „,. T »<-""" ai law to anv 

subsequent statute, which changed the rlrn J /^"!.,*?* *•"= stock held. A 
creditors against all the shar^h^^^J. remedy to a bill in equitv bv al tht 
abate all a|ions at law fherpeSng 'S'^h t^^^'''"'"'"" mXrL as 5o 
■^'Z \^l^^'r6oci,r TnisTcoTii^^^^d iL^? ^'fJ^'V^ unconstitutional 

tinction was early taken between fh/l1* ''•- ^"^'^''^ 59 Atl. Rep. 707 A di^ 
enforce the obli/ation See^/«;t' v fe''°"°' 1.^°"^^» and^he ^^m^y o 
200 From this*^ some counsStenedtS^^^T'"^'^'/^''' 4 ^heat. (U S.) ^22 
or absolutely withdrawn. Se S ^ i-rlLZ/'f 1*^^ f °"'^ be changed at w^U 
the federal courts, followed by the deHH»J *^f ' f'*«'^' ^3 Me. 318, 321. But 

Slw''''"^^^ "««"? -£n tL''rontracr,:rf s mlr^ ^^^« th^^ositSn 

j£-^«/«r«Jf V. ATMrso', 96 U. S. 595. Cl?arl7 tl f ^ " P,^" °^ ^''^ obligation, 
taken away. See Ca//v. //apeer 8 M^. /,' **'^''*'fore, all remedy cannot b^ 

iVhttsett, II A a. 472 ..tS 1* ..,* """^ for its app cation P^c^a-T// ' 

remedy, as this cou'K^So wL^mVai-rThToEr^':^^ ' new^mo^^^ct" 
change merely the remedy the stotrmuL n«» • '^^"°"- ^"t in professine to 
contract; an/the substituted reSdv^",^K' "TP^"- n>hts accruing under the 

senous inconyenience and discomfort ufifT^'^^ P'-^'"'^" to^ cause her 
for such in uiy, although thryahie of l^t f ^^^^ ^."^^ ?'«'"«» may recover 

App.;. See Notes, p. 127. oy«aw, ss s. W. Rep. 817 (Tex., Civ. 

'£!B!r"T'^°"oSS,;-lZm''l''°''''' TO USE D,UOENCE 


me origi"-' agreement i» 
ihrough the default of tne °"^""*"Ves"intended." ' It would seem, therefore, 

& °;;r.»sa » teSieC»!-.u>d h»d., b. .ou„^ 

Impossibility by Domestic Law. — A lessee 
Contracts - Defenses- Impossibility b» premises for no purpose 
covenanted to pay "^am rent and to use the dem P ^^^^^^^ ^ ,^^ ,„ 

except that of a saloon. At O^e time the leas ^j^^ ^^^^^ Before 

force by which any county m.eht adopt P^~°^"„d^de^vered, the county, m 
the term began, but after the Tease was executed j^.^.^„ ^^^ thereby ren- 

which the demised pretn>se« were, did so aaop j^ ^^^^^ ^^^ ^^ , 
SSl^aTytcl^m^tlblK^ covenant. Houston Ice, eU. Co. 

as analogous to ^ -"^'"c'^JferaSS he test o ability to foresee For a 

COPVKIOHT - IN-NGE«ENT -^^^^^^^^^^^ eO^pTl^r^hroriw^ X! which 

brought suit to restrain »*>« '°["Sed and s^W m the form of perforated 
the defendant company ^^^^d reproducea a^ ^^^ .^ 

nroperty therein, but this right is l°^%°"Pi"';t^d times to authors and inventors, 
?r Congress has power to ««"'^"*^;£'ran "• ^^ Con^^- 

the exclusive right to their respect vewntin|s an ^^^.^^^ 

Art. I, § 8. The term " wntings* '"*:\"'^"/"i„d of the author are given visible 
ine etching, etc., by which the ideas in ^h^ '"'nd ot t„e .^.^f conception, 

'l%"So^: Liiho}raphicCo^s.Sar^n^^^^^ Jh«^ Littleton, i^lj^. 

then, as an idea is not «"bJ«.V°.'L°E imposition, a statutory copyright may 
Ren qo5. At the time of puhhshing tne comp j composition the exclu- 

be^ac?uired, which gives the proprie °r of any '^"■'^'^^comp^St. .90., § 4952- 
sive liberty of copying and ven*^'"^ the same. v^ „ 

A copy is "that which comes so "ear to the ongma s ^^^ ^ ^_ 

feeinf it the idea created by t.^e °ng "al. J^^^^ - ^^^^ ^^ .5 

h st^hrc^o^iiiy^.^-^ v\^^i;^' t^^^^ •^^- -- ^-'^^^^- 

i(£r»<«««.«)'. 33 Frf- Rep- S8* 

TO DO BUSINESS : WHETHER ^°"f"*!'o foreien iilroad corporation sho^^^ 
T?0N. -A Kentucky statute required that no fore^gr^ corporation of the state, 

ooerate within the state until it *'^°^''' '^^''*i^d uv fi^ of its charter, 

Td prolJlded that it might ^ec^^e incorporated by fi^^ PJ^^^^ ^^^ ^ ^ 

and that "thereupon . • • «"'^^,'=7Cs^Wte " A foreign railway company 
corporation, citizen, and «'»'^^''* °^nore'en corporat.onfpaid a corporation 

present decision escaoes some or fh»' '^'' ^'^- ^^-^ '26 N. C 8^i Tki 

DoMtciLE- Government Official *x w 

Tennessee, and had voted th7re atSsT,iL«"'u''^^ '"*''« "'^^e short rps to 
tion 4203 of the Code provides that ^ h! ^ *''°"''* '°*e his position Ser 

^ivo"rce1^T^;;L?S Jo.^./e'^£^^^^ 

tii ^ul""^^' ^- R- ' H. L. Sc ?o7 Th» • . ■ """""J and iht /actum 
fact, to be determined by evidence ^uIa T^ '."Mention is itself a quesUon of 
elusive. In re Craignisl, SS] 3 Ch'.So"'"?"?."' ?^ ^^e party notteTng "on 
permanently is necelsary. Billy Kenlt^l ^!1 ^"S^'*"^ ^^ '"tention to rfmarn 
settled intention will be sufficient « fortl l*^""' '" ''"^ United States a C 
ing m a town, or while a student nrovidpH VI ^"'*'' ^ '"'^'^a'" *">'e one is work 
braham v. Ludlow, ^^ Mas^ .87 Sj ^^'T.''^^ "» o'her hom^^^^ 

tnsr of an uncertain future event r^ ^/ *° Tennessee upon the hann»„ 

St ^o But irh"-''^ '"T' ""'^f "am" at w?il ?Ai'r°" "'J-'^asonable so 

freedom oJloic'e^ is' i^m^tS '""'t ^'"^'^"^^^^^^^^^^^^^^ 

-e. Of candidates nomSS by t-L^.--,a S- 3^^ 


ballots containing other ""^'J^"/!"^^^^^^ party that had nominees for 

franchisement, since a cross 0PP<»'*^,^''^ "fi".\st no vote for the others, and an 

STATES. -In accordance «' ^ an esUbhshea ^u '^^^i^es rendered by his 
tion of law, accounts oj ^ ™"'!^;'J'°trwhich they had been presented at m- 
deputies, were approved ^y ^^ """ i^^^J^^^owed by the proper officials of 
tervals during Ws t«™,« »'=':^'^|' * oney w« paid by the government with 
the Treasury Department. 1"^.™°°:,L k, naid over bv the marshal to his 

-SembU, that in an action o^^^^^P^l^J^^^^^ it of the loss is admissible 


Kep. ix (V.). see Notes, p. ..3- ^^^ ^^^^^^^^^^ 

EVIDENCE - DOCUMENTS " R=5"i*,^t'Seed rldting that the grantors were 
TO PROVE R«^A"0««"'^J -i" d « eiidence of sufh fact. There wm no 
heirs of a former o""" ^ wemis^ h^ been held under the deed. Held, 
proof that possession of the P'f™**^"^^ Hebard, 51 S.E. Rep. 632 (Ga.). 
that the evi'Senceisnotadmiss.b le. Z^««^v yj^^^^ ^ ^^.^^^^^ ^ ^ „1 

Ancient deeds have been admitted in»°'^«^^"^.ff„ed ^^, j,,^ requirement 
tionship therein recited, though Jiecou't^haveame ^^,^^,^^. Deery 

of possession under them as a condu^n ^"eaeni ^^^^^^^ ^^^^ 

V W 5 Wall. (U. S.) 795 ' ^'^^.«''£^-^^Tn the principal case might have 

V Clarke, i Russ. 601. Although the "J|" '" " .,^:on had not been shown, 
^xdid^d^he evidence op the sole ^^^^^^^^^^^ 

vet it went further and intimated ^I'^t/^^This oosition seems sound. Recitals 
Sdence would not have been admitted. J^j^^^^^^^^^^ C../f //. v 

of reUtionship in a recent deed "« |;"„"_|.so„ for a different rule m the 
Burke, 63 la. 36.. Jl'^i^^St oTancieLeL shJuld be effective merely to 

C/. Fulkerson v. Holmes. 1 1 7 U. S. 389- 


RETAINER AGAINST JUDGMENT ^.^^^"3,^*' j„"t the defendant, who was the 
debt, recovered judgment ^^ bmts 'f 'j'/^'^Ks owed a debt by the testator 
Sxecutrix under a will. The.defendant hei^elf was ow ^^j^ ^^e plaintiff 

but did not P'«^d^/rf/''«l^SsTrationo£Te testator's estate, which proved 

5^S,^I r;%|S,,f^^ assets Of Oie es^ 

The common law right o^ =f /*f5 j^ereeTn amount owed him bv the tes a- 



fry. still obtains in England /« « lu 
nglU i, not destroyed ^y a decree for^T'J^ •^^- ^- 499- Furthermore this 
iJarhw, I Sim/& St!^s88 A iudirment k'"""""°" °^ ^« "tate. ^ii'^S 
against an executor who lots notffid J^/' '"'*5^'^J. recovered by a crSr 
alleging insufficiency of awets i^VnnM -^ '"'*"'''''*'' «' a simi^^^^^^ 

satisfy such judgment. SSsr- f "/'"?'^<= "PO" him that he hasTLtf !« 

o^hi *° *°Jf^^ ^l'*' ''^ couldluate; {ss^'hi,',''!.^- V^' ^ ^o™ thuTwouId 
of this creditor. See /« r^ Hubbaci 20 Ch n ^''^ °^ "'^'''''' ^^ 'he preiudke 


Kansas. In an action thereon^bfct jn Rh^'^,"^'' 5«=""*' the tesVtK 
the defendant pleaded that the tesS k,^^^°?*^ '^'^'''l against his executor 
and that the action was therefore bl^^5 died more than one year prevKs 

(U. S.) 312. But when a jud/jment is hirr!.H • ^^.^{'»^ie v. dyl<r«, i , Pet 
action m such a case. Miil.r v. 53a«^^ M v**'/ * 1*,'*'* ""^v allow an 

state. The defendant alleged that thl^i • ?-^* *''^' judgment in the latter 
which it u basrf I, ,„rt1-*| 2lh?" "»»!■"=?"»'» -I'rther ibechfm „ *« 




American Prov. Co. v- J-^/S S-i^Vghl^A^eVnc^^V' 

Harv. L. rev. 417. "P°" '„le ^fd to be a dimand arising out o£ the con- 

orice per ton, upon the understanding traijn ^ ^^^^^^ ^^ T^^ 

K'hrprosecutor's a?er^ who *^ to enter the we g ^ ^^^ and a half less 

iUher'in collusion Jth J^^^^n^ .V "£ner is guilty of larceny of the ton 

rarif"!.-^ K^^^^ 

As the court points out, the title 'i^'i^o^Sner w«re«'"*P*'''*°"'*^^^'^^ 
enfry inVe book!because the weigher ^^^^^^^^^^^^ 

the prosecutor, and therefore ^^e weigner 10 ^^ ^his violation of the 
Sle^to the prisoner. ^'^ZZ'^rTcot^ni ^ ^^nt, at the time of .Ws agreement 
owner's possession was without his coweni. , ^^ ^ ^^ need, but 

with the prisoner he consented to thej*"" \^^!^^^^ ashes be wefghed and the 
This consent was given only upon ^^^'^KamrUf things consent to a present 
correct weight entered in t^.^,^''- .V^Sent to a future taking maybe. If the 
tekine cannot be upon condition, y« con*^"^' ^t and is therefore larceny. 

Sition is unfulfilled, the taking is without co^*^ ^^^^ be of specific 

Martin, 82 N. C 672. _ Patented Articles. - The 


ri/fendant advertised for bids *<>' ""^."'"^ " ^ ,tatinc that the patentees had 

?pa?en?d pavement would be "/|£ ^Ta ceS'*"' ^^" ""''t"^ '"''^'h" 
agreed with the city to ^eH to any bidder at a certam p ^^^^^^^ ^^ ^^^ ^ 

t^u therefor A bill was filed to enjoin the »«ting 01 requiring contracts 

art cll subject to a monopoly, ^^»le ^he sUtute ^ai^a j^ ^^^^^ ;„ ^^e pos- 
Had the specifications simply required ^e use ot ^ .^^^,1^ have anscr. 

Tession of the city, obtained in the ^I^" "f JSe,al in erpretation of the statu, 3, 
The decision is a perfecdy "-fjit of a l.t^ra^ i V ^^^ ^ „ake 

hnt it is opposed to the prevading and preterame r city of Detroit, 17 

contracts "fke the one here contemplated, "obarts^ /«^ ^ J^ ^^ ^,^^ p^^. 
wX^V^Tcontra, Dean v. <^'^ff'r\„"3W»«- 59^^-^ i^^i.t^.e, which gave 
vahngdoc^ne is that it was ^^^^Jf '"*'";'e° "nt , from "sing patented arti- 
Ihe city power to make in\P™^"? " ^ benefida • The rule laid down m the 
rles when thev should be desirable and benehc ai. .^ ^^^ S e 

Srund^j^consideration^as aot^roven^^^^^^ ^^ ,^ Superior, 83 

Wis., P. & L- Laws, 1809, c. 310, 8 •* » » 

Wis.' 222. „„„ TnuTs — Recovery by 


from any of the company's ^^^-J.^t^Ky for a defect in a street, caused 
amount of a judgment rendered arainst the c"y » ^^ ^g^over in tort, 

Sy The defeniiann^y negligence ^l^^^^ tf^^.Z Lits its rights. CUy 
but must seek !*« remedy on the bond wh^n ^^ 



to the municipality in tort, i^tiy U 


a^^ion'?uM'?eA'nduU^''thScmir„'ff?r *''^P'^'"»'« '-^ »uch for™ of 
presumption is that the bond L«^ni '"'^*'"""^*P'«^««ed therein "r hi 
Pal-ty a greater security u? ,« a ceTl V„f ""''■'^' '"'''"^^y' K*ving the mun ci 
recover in excess of that amount T/nZr^^u"''- ^"' "°' ^^'ving its rS to 

fh^eTabtiff'"",''^ "ot be Sued 'l^'7xZiv7o£r'""' '^ ^"^'"» ^^'the 
tne plaintiff unless such construrtinn !. .° *** '""^ common aw riirhu of 

"«^"?.7 conclusion from its emssichfn?';'^'"^ ''^ ''» clear im^^or b„ 
ance with the analogy of stotut^ wh.VK '"terpretation would be inaccor/ 
to alter the commonla'w. ^! Sjv.'^^tXa^^Srfor U "s^ *'^" '^ '"'-^' 

NeolioencE — DefENSp.1 P.„ ' * ' *^^* 

Defekse oe Assumed RfsK7_TE!^.i?:/ C«i«»al St«„te o» the 

partner who assumes the firm deb"s mu t „ ^1l'""^"'"? °^ "^^ business by o^J 

i' onion that a creditor ofaaolv™'"""* ?? "" '""»» ing firainds the 
«.. Topert, before he can reachX ?»? "j"',''' ■""" !■"= Sicourse lo Ih, 
»!.. It foundation, the sepame esli,. '",'""'"»' P'"P"V »' ""^ patw'w i, 




condition imposed by the will « ^^^,| ^ ^ .^e can determine whether « n^» » 
of her esute, has happened. ,'° "°'° " .u-t u j, a lezal condition. A powi 

ffi^the nece«ary orma ele-e^^^^^^^^ ,,„„„ lor hdding it invalid. 

turn of the appo'ntees estate, seems ^^^ ^^^^^^ ^ ,„. 

For a discussion of another aspect o ^^ ^^^^^^^^_ 

RA^LKOAOS- RAILROAD C'tOf «« " ^,,^^^^ "^^^^Tth'eVai^ri?- 

ING Crossing. — The *"»! ^°V" J^ .^^il to give warning of "«.*^*"* * '^ 

^¥"aLst all iuHsdictions in ^^[^ rrSl^S^^ZV^t^^^^^^" ^^^ 
some irning Va train's W^^^ ^utCX ff^urefo give warning « 

c'^fthfugh recfgnizing that there may be »uc5^^^^ 

^f oVade.the court nevertheless refuses to exien decision seems 

C/.'^^^^y^"'"'' ^- ^- .9- rtftSailu^e to give warning of an approaching 
Srfct. ^he danger inadent toJ^«/^^^^de°^^^^ 5„ that of a " W^iVe^t 


Furthermore, this distinction between the two k^n^^^^ .^^ ^ ^^'^i'lS ?oS 

ognizcd in those decisions wh'chh^^^^^^ ^^^ ,y ,„ „on.grade cross- 

fngs. C/.Jensony.Lnicag, ,, t»„st Law - Agreements 

Rep. IS5 (Crc. Ct.. S. D. N. Y.; _^^,,„^_ enforcement ok Re- 

RESTRICTIONS AS TO THE USE OF P«f f^J* ^f Massachusetts m 


•tate. The fact that »i. 4 '^' 

For a cliscussion of the Drinr{„i • . ^'"'' 5» 

"" ui me principles involved, see 18 Har 

witnessed bv the n^hl J i" dehnquent treasurer Th. . " '1"'^ » PO'*" of 
as required^ the rSL, 5 "1"H.» '"'"'ber of the New Ct""'.?* 'l".""'*^^ ''" 





Of the power of Congress to re^btent^^^^^^^^^^^^ ZZLt, whicfwa. maie by 
recommendation of a federal f*""*^.,"^^"'^" 8 ^ ^ Association. Re- 
a special committee at the la»t meetug of the Amenca^^^ committee's five mcm- 
port of the Committte on Insuranct Law- ./Pf^h 'rented a minority report. 
Cers joined in the majonty opm.on ^^'le the fiUM rcse ^ ^^^^^^,^^ declaring 
Neitiler report w^ »<^t«d upo" i'/iJ.u.ancTwouW be unconstitutional was re- 

t:^1^^^S.^^^^ that con. 

The members of »!>« '^o™'"/"":^^''' S^dUairee upon the question of 
pressional regulation '» J^'^^^^^"^^^^^^^^^ th'e past decisions of 

Us constitutionality. The n«)0"ty repori ^ business of msurance 

the United States Supreme Court do not excuaexne Hgelf has the 

from the definition of "commerce »"? '"J^^^'^'he subj^ects of interstate corn- 
exclusive power to determine what articles a« ^^^ ^ ^^^^ 
mercc within the meaning of the consmu lona^ p supervision is impossible 
denies both these propositions, and insist* tnai leacr* v^ 
without a constitutional amendment. ^.^^^^ ^j .^^ ^o 
The sutement that Congress ha* authority to ae^ suggesU an examina- 
regulate interstate commerce, which is at le^tstartnng^ g^^^ . 
tion of the authorities upon purports tu be D ^^ ^ 
upon isolated sentences quoted from a«='^'°j".* ^^"^^^^ in the original pack- 
pUer to exclude from 't»>""^*"" .'"SeTrW Kn by the context to mean 
Sges. The language of these ^^ZAr^^cllo^lxoi a sUte, has authority to 
that Congress, as against the asserted polic^^^ in fact subjects of com- 
determine whetU.r commodities which are acunitxey ^ ^^^^^^ , 
merce within the meaning of the constitut^o^^^ .^ sought in the 

of commerce. Further s"PPO'^t *°^*,''V?rwheat fU. S.l 316). This deci- 
famous case of McCulloch r^. Mandand (4 Whea^^^^^ , 

sion, however, was simply to the effect that congr execution of its ad- 

charter a national ba"»'/f J" ^PP;°P"nui"s „" intimation that Congress has 
mitted fiscal powers; and he oP "'°" ^°ff Xtant ve and independent powers, 
authority to define the hmits of the g'^eat sul^tanme j^^^ held to be 

to which' the P9*er°f choosing appropna^e^^ e-ec ^^^^ ^^^ ^ ^^ 

annexed as an incident The =i"thorit'es citea o^ j, a question of the interpre- 
the term " commerce " m the constitutional ph^se ^^^.^ ^^^^^^^^^ ^^^ not 

ution of a written instrument which is to be maae uy j 

by Icgislative/a/. ....,» ,i»,<;cSnns furnish no obstacle to federal 

\h^e majorit^r's contention, that past decision* fu^"^"^ ^^ ^^^^ ^ 

regulation of fnsurance, is true only to the extenwn^ regulating insurance. It 
never passed upon the validity of an act of ^onf eM regu b ^^^^^^^ 

has. ho^wever, frequently h?ld co"Stitu Uonal sU^^^^^^ ^^^^ ,^„i^/,y except 

foreign insurance companies from domg busmess ^^ ^^^. 

upon condition that they obtain » hcen^e ^'om Je^^^? °^^^ ^^„. ^y. 3 j 

amount of premiums secured '" Jhe state, /-a-' v^ ^ ^^ The 

,68, 183 ; Liverpool Ins. Co v. ^""''^^."f^fAld insurance from the definition 
contention that these decisions have not excluded insur^^^ assumption that the 

of "commerce" cannot be s"PP°V^df,'^'^*dfn their nature, which state 
statutes affected only "^^tters local and ^>'" ted m t^ ^^ ^^^ ^^^ 
legislatures may regulate in the absence ot iegisi.iu / 


cedent to their doinR business H„ "»"""'^«-' companies as condition, p" 
•^-tently with the Le of deer, on, whic'h h;,?"'^ "PJ be sustained cr^. 
concerning «pre.s companies aT^iroad, ^*'lV"'^'i'' "'"""' «^«""»'' 

r-Kht to exercise police powers Thri''"",''? •"'°"«'" '« >'e j >Mihed bv hT 
classes of statutes is tha one does anH^h^' "fu"' '?'"'""ction bit...,rth7 two 

JUS ces dissented, can hardly be said t« l^.**' ^f "'""""' •^""' ^-i-^? ^' ., 
earher cases recognizing the Llro? ^ ... '.'*"''''*"'■■■' ''"^ ■^"•■'>"'i. o» i„e 
»al of these decisions could E^ iusHLn "^''' '" '■««"'-^'": ins„r,nro. > ^eJr^ 
change in the nature of the bu,?ni^^ r^ ""'^ "P°" '^e grour<i that . , Id h 
rendered: and on principle it seTm:drfficuh"tr;%^^' "S^"^'^^^ s..l '\-'.. ,'t,c 
of insurance from that of the negotiation nf ''"""'^""''' "^^ P^^^' • l^u.ivss 
tics residing in different sutea^ ^ " °^ *"^ ""'«<=» by n^ail between p^! 

DiSHo.voR OP A Certified Cwck t. • 
under an absolute obligation to nav a "r^.u '" ''°'?'T'' '>«"''f that a bank is 
payee as long as the chfck remain^s [n his ,^« "-""^'^ J"' **>« ''"s'^^nce of the 
tions of forgery aside, has anTrevooble S f"°"' ''"? *'^^' "''^ P^'y", que^ 
of the circumstances under whir hh«Ar^ right to compel payment, irresDectivt 
• Banking, 4th ed., S 414 wS ''/.P':°^."«^ «he check. Morse. Hanks Avn 
article by an anon/m'o'ut wr^^e ' u±st"'"tLMhe"h ^ l'^'^"T' P^'-'p'^'^ 'a^te 
stances IS lustified in refusing to honor h! V *" i'"''"''' ""^'-■'' c«^rtain circum! 

the check has not reached the hands of 1 E'^^ "' V"""-^^. assumed that 
author points out that a certified check i,^nT ^"^^ P^rcha-ser for value. The 
bank, and that a bank does right fnrSlf"' '° ? Promissory note of the 
^Y^- Omstead v. Bank, 32 Conn 278 T^ ° c'^''^ "^ '''"'' ""te held b a 
should also be protected n its refusaf .ri „f ''"<^f°'-S' ""der like conditions^t 

ch".it'^ "^»V"'!««'ne power shoiL St wLnfh^'K^^^'!.^'^''' and it is c^n! 
check was obtained by the nav^^^.^ 1! c , ^^^ b'»"'« has notice that th^ 

trnl « '"tu"" P^>'"'ent. The drawer befnTthu, .ff . n '!! '"'" ^^^''^^d with 
trol over that amount of his earlier crpH,. „ effectually deprived of all con 
promises the drawer to pay the navee in , !. °" """' ^^ '^''ich the bank 
up ail claim on it. As the art nf^. .'2 '^"."^'deration of the drawer's eivin^ 
payment by the b.,nk o/'L ll^^S'^.t'rh" T '■^'?, =« ^'^^^ <^"^^^^^^ 
t'^or^'/'lf P1>'"' ^^ consideratbn for the^nt'"'' ^""^ ''" rtAt^osXx by the 
tion of the check and allows the mnn,„.^ *• P'''"""'^' accepts the extinc- 



When „a„d b,c.™ '^f;^)^^^^^^^^'^-^^^"'^^ 
founded on equitable P""':'?'^*',^''"'' persons, Contracts, 9th ed., 949- 
recover his property. ""Jf J^^,,^ in *he hands of a fraudulent payee the 
Thus in the case of a certified c"j« in »ic constructive trust for 

Sk:; has a right to recover U, and th paye* ^^f ,;,, ^ ^dge of the fac^s 
him. See 19 Harv. L- R=y- SS- " ,j ^ the right not to hon"/ the 
it would seem proper "ft on y that it snoui j^^^^^. ,j That the 

1-wk but that It should be liable to the maker uu j^^ ^^^^ 

payee has turned penitent when ^e asks the b^^k to Pay ^^^^ ^^^^ j^^ 
Et to reimburse the maker, is highly l^nFO^a^^^^^^^^ tort against the maker, 
tith knowledge of these circumstances is an equitable to | ^ ^^ ^^^^ 

the basis on which the drawer tou d ur^e ^ny «1^'^^^ ^^e maker, since he is 
f^vor See McCord v. Bank, 96 Cal. .97- 




' <^ <7n Tn the eeneral develop- 


menfonhe law of public-service companies, "rtarn Ph^^* one of these relates 
JScSvedinadequate^reatmentby courts and text wnt^ ^^^.^^^ p 

to the dependent services of common earners ^^ „ot only collating 

W^-man furnishes an admirable discussion ottne^q ^ consistent theory 

theTeading cases on the points '"^"l^^''' ''"' ^°™ «l;,v Duty of the Common 

°'4t: S ofthe exprU cc^p-es m^^^^^^^^^ ly, o „,ajr 

^ J .._ f...„;ci, pvnress facilities to an cAjjito r , __mape 01 all 

express mat eT o^^r its^line ? The c-rnei^s -^"f t^^— ^^^^^ ^^„ i„, 
nub ic duw. It seems that it o*" "° j^'^e^'essCiness itself and shut out 
?or might, ultra v-res aside, carry <>" an^^PJ";^ ^^s never held itself out as 
aU express companies from its line. ^";.^">'Xthrrelation has alwavs been 
a carreer for all express companies. Histoncaaiy tn^ ^^ ^^^ sU^m 

based on contracts with '"dividua companies ma y ^^ ^^^ ^^^^^ j^ 

Sblic to carry aU express "'^"".STes bitween the carrier and the express 
?^n» nf the law of pub ic service applies t>ftween u ^^^^^^ 

company hivTev^r.^t ^oUows, argues Projessor^^^^^^^ ,he 

be charged extortionate prices by f «,f "'"^^^on carrier, and therefore bound 
public. The express company is ^'^^"/.^^^'"i^^elative, and if it must pay an 

P:iic'?h7satisfactorvserv ice at a rea^^^^^^^^ ly by rv>„| 

Utled, we must hplcf that the earner pe^.^.^^^ ^.^^^^^ discriminaUon and for a 
all express companies witu adequate la- . . • »„ th,. 

fair compensation. . ji,e railroads' only duty is to tne 

puS "S Kn|r.hi 5K. «-"S .h.„ re„.nabU sa»f.c.,on, .. « 


public. For if the ra Irin • "*" «'«'» that it allows th. t^^^P^ *''<^ "^""'t 
cannot escar... Ii,;^ ,'^?."'^oad 's under a duf«\« '"^ exploitat on of the 

chooses to Sct^h,«°^'!«^^"°° '^y delegating [he n.r!^ ^' * reasonable rate ! 

enforce iU rfght toTf^ °°' k?P^"« ^^l^^^ort^T^ °^ "• Whether 

t? present afy insu '!^,°"*f''e "'e from'^the road rt ' '''^ P"^''<= ""^y stil 

rights as to tfie tranS^ P"""^*' difficulty ZtL l^r"^^^ does not seem 



Christian Scientists anh r„ , '^ '*' ^'*''- "' Can. L. J 

coS^crr ^^^"^^"^^^ -sf^^ ^:^^^ 

a?a„roSi„-^^^^^^ ^^J- states o. 

BrsxrcS^JrVE^; ^rS'p ""^''°"' " 'he^doniSsff et^o 

ExctusioN AND Deportation*'*,, 9 L- Notes (n7y , ,i?"°"*"y «»^= '" »o far as 

'"S^e?c1."5 irS^^H - CoNOREss over r '"'''-^''"'-'^ '" 
Exit OK the poc\"^/;^rUvf''^T, '^^"^^KsT^^^ ^"^ ^°''^'«=* 

the debt, such payment ft rr'''"?'^'hh^ 'hat ^here a 

^ m the state wheret^! dif '''" * '^■^^e"** to a subfem.lnt ""^ "ppeiied to pay 
Federal SuPERvi"o.^''^p^'vh'w« created. 6, Cent l? 26 '^"°" ''y his credi'^o? 

TREAi^Es AND ExEcuTivr A " ^'"''- ^^ "'• 4" See 





M I 



T o. ENG-AND By Edward Wavell Ridges. London-. 

^°^1^ST s'^i.^Li^er r90, ^^^J^^ .hat engross the 

TKi* U a book of the hour, '"^pired by the two gr moment, imperial 

attTn on of S^ethinking classes m E^f f ^^JJ^^^^ntly has these matters 

''■ \ -■ 

^The" u'gSu e and the Public R-^^^ V^ 6 SuSs ^utject to the 
2 Ihe ueg. ^^^^ jj^^ and the Ar^^V' "' ^ sections that range m 

„.nVL' ™»„.,«,™a,^ ',°,S'iS^^«»^ irhSn,/L/ Should convene 

'^€:lh"con.on.i.n mean, an Ttt «Mn,«°';SSfi"?ie'*«oTi^"^^^ 
RiSl go's '»» '" '" ">'°,^'° ,r^n 5 s cS l*^"' »<•«"<>= »' "" "?'," ,°n 



ance : to many it aunears that .h ' m^. '"*' *'" "«' find universal arn^tTf 

to that of thi^ couTtrrmKs ™S''r °^ "''^ AustralJ^UnTonsSn 
Anglo-Saxon communitier Then aS L^h' * ""'"P'^'^ regrouping of he 
itt'^'T-.^'^"^" the British pubnc^aDr«emT'"K« the various schemes of 

The^?rrti^lrL\dt^arf^i^FT^^^^^^^ ' ^''^' '^"'''^ ''''' 

which, as a handbook for Ituients^r fn^.u" ""' ^«<^* ^^e value of the book 

federation, should ceruinlyp?ot"a%o;v:nieXide""*'' '" "'^ «!"""- «' 

° R. M. J. 

"" ^i"court„°; Stlnhope'^K^'ny'^'^Cambrir" ^"^7"'" ^^^ °- TORTS. 
pp. x,v,632. 8vo. ^ ^- ^^'"bndge. University Press. ,904 

bly sl^llTZl^ll^^IZil anrmfl""''^",^^ ''■^ ^''^ ^-•'"•dge Press inevita 

Both books are avowediv designed tr.^.. ^o^^ '^ "-^RV. L. Rev. uq ) 

tise on Torts; but Dr. Kenn^s b^^w f""" P--"-\' '^^^^^ Pollock's trea- 
closely and is, on the whole i^oreTatiS"?" ^'l ^--ederick's classification more development of the's'Cect Ivid"^^^ 

the cases under the various heads 'VJ/ V ^''^ '" "'^ subdivisions and in 
b.t,ousiy including too much w thin iu sconce ''^r'h''^'\'°"^"'°" '"^ ^" am" 
and Agent might have heen sDared frnm^*^ . ^''"^ "'^ "^^ses on Prii.cipal 
Torts^ And while one hesitates to differ wfth^an"'"" °^ "'"^trative cases S 
Dr. Kenny, one miffht well thini- ;^ i .. " inexperienced teacher such a^ 

extracts from Vegelahn 7.. Guntn^rTifif m ^ ''""' ''.'^ summarizes and gives 

ti'e'H^ote^"^^! ^°^ ^ ^"" WrecraL^'o?tlfeT:;e'aJd' th"^' *'?'^ *-^'--t is 
ru "°'mes. An interesting note on r^ ° ^^^ opmion of .Mr. Jus- 

^S"'-/ S-.ters' case in Iowa^(„4 la 2ot ^S^""?'"' <?• 3'8) cites the recent 
mous Roberson Case (f7, N. Y tsV H^' • ^fj'"0"\«f the opinion in the fa- 

on -. VV ri^P- 367) referring t'iS'e'aSVflf"^'' °LP"^^^>'' ^'^ P""4 
^il 7-^ ^'^i'* *° Privacy "in 4 Harv^ I p^l ""^^ ^^'■'■^" and Brandeis 
ProSri''^'^'^ " effort ^of the Harvard Law o "^^' ''^'*°'' ^"'"'"^"^^ O" 

drje-!'-i>£"'-t ^rom an'aia;"dectio?^Td": f*/,' ^enny p.^„T: 
extend' Tl^e numerous'V.i;^^;^ l^^S " ^'^f'^"'^"' i^lS^'^^^ry S 
are suggestive. But in o^f these „oTe.Thl"'r '"'"'"''' *''°"?'> "nprlte^trous 


The bracketed headuotes are a «gretteble feature c^ the wor^^ 

„nslUutealortagainstano*er. KO 8 ^^^..„| ca«» the editor repairs 
S^thr^^Sirnfanen |»W»^^ 


^.., 1 AW as Founded upon Theory, 

=:B-.HetreJr„s.^ora5^H i'o"^ 

consmerea j countries are not consioereu u ^^^^^j ^ ^j 

«f rnimtries to be consxdereU, ana lo 

-^^TUSon h. been well done. The Jk>oU. U^^-^^ 

rea^dable a^d c'an be readilv understood. S""— |f '-^^rous as might have 

trurtion their German orlgm ; but t^ey .^"^^ "°; £n„iuh and American cases, 

Mr. Kuhn franklv savs thif ♦!,» 
of the law upon tK,' cs tJe'fe ' hI"."'' '^T '""^'^''^d ^« ^ full exposition 

S. H. E. F. 

an°d Child °Srdian S"" WaH^'lnT?''^'^'"^ .""''''^"'J ^"d Wife, Parent 
JarnesSchouler. Boston: LiS' I rown' anH r •"''"^'- ^"^ Servant By 
^421. 8vo. "'«' "rown, and Company. 1905. pp xxxix 

meaning of the various sweepi"- statT,?^? 'r "^ "°^-*™'« ^n^ modifies Th^ 
upon the statutes alone is iTkelvtS be ml^^ 9\^^%^^^ that anv opinion based 

infants, and iuafdiT 'nd^v,^:?^' ""^'Z H°' '"^^^"^ -^' wife, pa^ f.^^dTh"] 
dismiss ng with brief mentron the wK"* '" P^'"' 'h°"Sh thev may be a„d 

As"a' ra^e'l^'t^ f ^-"'^""^''^'^"on '"""^ ''""'"^ changes ^whinh "hi 
*„ u^ a statement of the underlvinc n , 

parent and child, 



Ob gat.ons of protection, maintenance '''h " °' •^"""^^''^tes as legal duties 
the chnX"'"'^' ^'■^'""'^ "'orai; ?ha„ ;nforces in f "• "^i*^^ ^^"^ commoS S 
£d'u'pn'rth'e'S:"^.^f ' '""^ -i'l'-'b'e a": o? aT'^nff'^P""^^- '^^ *« 
Perienc'edreade m'JLtS ','U!rr'^'' ^^'^''^ «o-e d^t ' wherhe-r'tir-'* '^ 
to voidable far greafer than' "^X 'T' ft'"'''"- 'Y P-Po^"- o o d'act" 

H. LE B. s. 


lfwve« w 11 find the book helpful. discussion of difficult problems of 

T? rm,«t not expect to find here original a>*^"7"r.i^at the inconsistencies 

S^r'svo.' , r. vrRESS OF LAWYERS AND Jurists 


°"hTd at St. Louis. M'sso"" .^ S^ .. S^P.^.^^ ^„^ 'r''t;/'K Pu" 
under the auspices «* J'^f,^^J''„.tarv of the Congress. St. Louis . f ud- 

Combinations, and "I >"='' '™ Ne„ Vorlc and London . G. r. 
Ss'sonrV Tp i. 3Xiii,f9S. J'°„ ,„„.,., „p,n Ti,»n, 

-""sfor.foru»PO»- S,^. ^.^,1k,'el'l4m'*X»ac.ion. oi *. 

'.""""U'BStoociaUoXrigo^ PP- '93- 8"»i.„„^ FINDIKOS BY 
Amencan Bar assolmv ' VERDICTS AND »""*''_•. r.nroe B. 

Clementson. St. l-aui, ivimn. ^^ ^ 

A tS«,s,= o» '"a'-SiSTHe-sS'.i^'B'Ju.J-n iS." S,. Pa»i; 

▼• . xxr. »«. 

«v 'tt 


'^roOc88c Quarn Conapicf 
The Diver 

L'i'iie marble, nude airain«t ♦!.« 
In ready ^....HeXritXlV^^ 

And bears h,^ as a cour^r l>ear.s a kin/ 

Silas Alward» Q. c, D. C. L. 

infinnity. indeed it l^^TJ^^Z 'ZV "^^T "^ '"^ - 
care and protection. He came to colIfJI . . ,"" ""•^^'' ^^"^ »P«^i«l 
read books saturate.1 -.vith nTaudh^ ^^ •"^"'^^ ' ""^ *° ^^^^^'^ «»^ 
the beginning that it wal no par :f Sr^o ''"' "^"''' ^"^ ^-" 
into empty wells, and grow old nnJ ^^""^ *'' ^'*>P »>"<^k«^ 

the Dr ^-i!i rci=~nf-, drawing nothine „? n- .-»..._._ 

with him on his devotion to studv Td " '!^"'"''-'' '«™«>"«trated 
ify and curb en ambition that weH '.Sh n T^"^ ""'" '"^^ *" ^■ 

^ ""*" "'8^^ overleaped itself. The fruits 



-♦„! «nlicitntk did not manifest 
of this miser care and almost P^^f^^^^^^'^^,,,,, the wisdom 
themselves fully until the 'f ^>„7,„tt:r,.ondrous growth U 
which is peculiar to S*^n.ors begins tUWe ^^^^ ^^^^ ^ ^^^^ 

is then the lesson s '-^7»;^\; . „", a.,d true let the following 
infirmity. That he ^*•»s » good stuue ^^ , Chairman of 

fron, the pen of B. H. ^'*^;"' ^^'^ ^;„i^ersitv, bear its testimony : 
the Board of tVovernors of Acadta Inuers ^^^ 

-.1 co«. now to probably the -ost brUl ant class^th ^^ ^^^^^ ^^ 
the pi^cribed course at Acad.a _the ^^ ^^ ^,„,,„ts that ever 

where the alphabet has placed l""^"'^";^^ ,^.^^.^ ,^ ,,„e. but. to 

The writer says he was a g«^ ^ "«:^\,g,,i,„. a good rhetor- 
ic say he was a good "- ^^^ '^''^.^.^ihat he showed a pecuHar 
ician. is equally true It i not so n ^^ ^^^ ^^^^ ^^^,^^,^,^^ ^^ 

faculty for a given «tudy as hat he w ^^^ ^^^^ e..nnect,on 

the course. Others of h,s "^ «^ ^^f^ ,,,,^,,phs. might fail to repro- 
and perhaps the '^"^stance of certa " P ^ P ^^ ^^.^ ^^ ^^^^^^^ ,„ 

duce soine bewitching -^t'l^^^^j^^^J „\ines. but Alward never. He 
adequate English «ome Oreek or Lat n ^^ ^^^^^ ^^^^^^^^^^ 

. always had his knowledge of the ^^"°";- |^ ^i,,^ is the meaning 
..The Professor will be here m a t ce ^^^J ^„j ^,1,^^ ^,e the 
of this word and this: ^^-^^l^r^H.cX.. will you?' 
formula for the solution of th. P-^^^^^ ^^^ „, ,,,, generally equal . 
were words ^-^^^''^\'''''^^ZTX^^^ to sundry requests of 

to the emergency and r'^'^^fj'^^.^^l and the giver grew ui 
this character. Thus the needy we e 

tHe confidence and esteen. of hchu-^^^^^^ largely to the subjects 
As may be inferred, he g-^^^^'« and good marks were secured, 
of the curnculum. 'rh-;^--^;;^:::^^^^^ was not so .trong as at 
Then the temptation to do oj^^'f^ ^^^ ^ thepractice. At all 
present, and perhaps a too low e.t mat ^^P^ ^^^ ^^^^^^^^ 

events Alward was graduated m .86 ■ i^j.^tep as firm 

His face was as ruddy, his ej^ a- ear -^^p^^ ^^^ ^^^ ^ 

and elastic, his voice as strong an ^^^ ^,^^ g^^^^,^^. 

recant when ^e^^ft coUe^e ^s ^^^ ^^m^^^^ ^^^ ^^^ ^^^^^ ^^^^^ ^^„ 
ed too with the idea that Man is ni. 

^ honest IS th. onU perfect man^ ^^^^ ^^ ^^^ ^^^^ 

With admirable ^^J^P^"^^^^^^^ ° eTi Skinner, now Judge of 
,t„dy of Law in the othce of H"- Ch-l-s ^^^^^^^ .^ ^^.^ ^^^^ 

Probate .n St. John. It was wh.le he wa ^^^.^^^^ ^.^^^ ^,^ 

,faat his l-;ter.ry instincts began to ^^ ^^^^ ^^ ^^^. 

reading l>ecame much wider han th " -- _^ ^^^^^ ^^^^ ^^ ^^^^^^^^ 
:::;ll^:ri:irt;:::;:nam:^ofthe,.auti.l. Apoemlike 



"•ent in art. When trulh „ V " ^"""'^ian Capital i.s a frae 

rivers "uke a ne:%::rcaned%Xr'rf "^"*"'' '^^^"*>- '''-- 
bosom resemhlinK the sea. Alward ^ifi, / '",'"' *^"'""" "' ^'"^^l 
ed upon the l, He iVi.l unll ^ T "' '""■■"'> '"«""''» fasten- 

best to .serve his pur^s " e tit ;; 't. '"T "'''""^^ "'''' -'""' 
I>en.o.sthe„es, Cicero the pltt S) "'""'•'*''''» ""'' *'« expres.sion- 
nisraeli. (Gladstone. I^ri^h VU^^^^^ '-x nn.ughan. „urke. 

>ntere.sting ami edifyin/to lil , h . '•'"^"'"' '''■ " -a" 

choice passages of ,/r,«,u:„tic„\r'""' '''''-'' '"^^'^^ »'- 
thought and beautiful i„ exp e^ "n h -"' "" '"'' "''' "'""^- '" 

and joyous, has n.ade his Xb 2, JT ""'^""' ''^»'» »'^-"' "f^' ^esh 

fold ways has strengthened a. .'^H H f '""' ^"^'•""'*' '''"'^ '" "'«"*- 
cation. ^^ •"" '^""ched h.n. for the work of his vo- 

The Record of the Tory Part rr. '" '''"'^ ^^ "'^' '^'^V anJ 

popular lecturer. The subieot of ' '*' '''*''" ""'""" ''•' =*" «ble and 
known : Our Western I rCv^" "' T""" ''^'^^"^^•'* «^^' «-" 
The Permanency of «rit"S^^^ ^Jf "^■'*'' °' ^'"^'''"^• 

fon. fine efforts the Pre s ' Z' " *"'''' -^''"""i^tra- 

JTuage. In them there are pasll'es e .'l" ""''' ^"'"'''*'"-"tary Ian- 
power and fine literary "'''"'^•'•"J'' striking de.scriptive 

«"t Dr. Alwards vocation is law h 

childhrx>d a vision of his mission ..„r. "'""' '° ''""" ''«^ *» 

vcx-ate in en.bryo To at a h.l ' "'""^ '° "^""«^ ''^ ">e Ad- 

".>". lo aiiain eminence in fiiio u; l 

Ae mastered college text-books amlT ^*'°-"'^" Profession 

fancy that to him fhese wl" no H "!!'''' '"'""'' "' ''^^«' '"^-' ^ 
-ork brought to him ddU oil "f' ',!r'"? '"^''^ "" '^ ^ach 
a-s interesting as a hightone^L " r.^ugh'Tir ."'' "^'^ '^^"'^ 
ance with literature and men as -veil as h?^ '^*' ^^*»"«'"t 

the continent and elsewhere' lek"ta^\''\'"^^"^^^ '''""^'^ °" 
blown. He did not walk in th common ruts Z ''' '°"^^ '"'' 
Plagueof mental conge.stion and miir:y\::lr.y '"^ "^"'^ ^''^ 

indi^::^::d'rs';r:m;;:'^:;?^^"t'^-'>- *'^-'*^«' -«« 

and cogent reasoning he a^^ Inrnl^rSmr Ju^ In^d^^^ 

pn^b^rw^^STntr --:;;- r;::^ --^ -" - 

him. If .so he will in alf probabd-tv bin Tu ^"' "" "^ '""""^ «•«" 
sketch. Be this as it L'y the nl^'Jlf '''"''' °^ ^'"'^ -P-f-t ^ 
en, and who can tell ^^ .t^ZtZly ZT^Jl ^'''""'^ •'^'"''■ 
mortals- This, however 1 do know t ^Dr I, ^^ "^^ '"'""'^ 
be holding his high position amongthe eminent T" t """' "**" 

he would not have been cated l^:'^;!:!::';:;;':^!^ 





.,.. .... ^. ,o. .0. ^ -j^'i:':^\::j-i:\t ^:- 

College, would not have been '«^""'~ J*^ j^„ t^ice eltcted Pre 
Utu« of hi. native provucew^^^^^^^^^ ^^^ ^ ^„, ,, U, 

.ident of the Mechanics In«tt«te of S^^^^^^ ^^^^ ^ ^^ ^^ ^ ^ 

principal directors. ^^^^ "°^X r^dUowed by D. C. L. from h.n 
Brown University and the same degree knowledge of h.s 

own university. J^ J "^^ ';;;j;eVe^ric be able to touch the 
mother tongue and -^^'^ ^'* P^jX^ were not behind all this the 
„i„d and fasten -°"^';=^'°"- ^^ Jf^^^th of character, the mental 
;r:hrrr;i-^" ^on^e the reason and explanation 
of all. 

The Babbling Brook 

BY Miss Ziteli.a Cocke. ^travinsr 

,H o- MavinK that a m*i and maid went straying 

^;a„av.en.ha«ed»ndthro„Bl.»ow.r.b,.k=b„d haunted 

A„d s.n. .1 ho.r of g.o.»in. found .he happy pai- -o.™.»8 
*"' V th. ->"-«"^: j„I,f r.T.W pa.h.ay slyly 


A„d a"! .Iv,. .uuned. and Ua ....a .>a„ced and .„.ened, 


AS u ""•' ,, secret to the sea. 

On its way to tell a secrei lu 

^„ !o. a wo^ of «a™>., n... for o. n-aid... soo^.n. 
Who fn.™ -'°olrJ,r;i r:;,;. „ay.of .ov.r 
And will babbie every ^^^^^^ ^ ^^^.^ Reed." 


.n«sn>a «<«•<■ 

College Friendships 

Aa on. -ea. .he -Pf ;°;^ira ^SeLnVrJ ^^n 

rx^t^rhUrthri-rrof^i ..^--^ <" - -- 



what powers of tho„Kht and expu-Xn l 'k!*"'" "' ^-or^Mg^ . 
J-m : and what ,Kr„.a„.„t frienirp^lh^^^^^^ developed J„ 

but .f this b. all. he has failed uXu.h^^ "''"''"^ •" "'« <^"'«. 
the nchest fruits that ^row in th coUet' "'T ''°*"'' '"'' ^° »«*»• 
".any respects is not different fro. tha Tf tf ", . ""''^ ^^'^^ •» 
'» one plant which flourishes in the fori, *""*'•'""* >'»• »here 

favorable atn.osphere Though r^tS^d "" ''f^' "'"" '" ^ >- 
ous growth. ,t is a dicoti leJonoTs^, 1?''^ '"" '* '""■"» "° «P»r- 
least among the plants of the Tarden Z ''?' ^"''*'^^ "' «"»• «"<» 
unfolds, and buds and blosso„HnIo'»!»^"'^""''^' '* ^'^'^"d^ a"d 

'on.isladenwithapncersXrge ^JJ^^^ir '"I""" «'"' *- 
It .s at college, if he have th. ^ , *■"** "* Friendship ! 

bj>y forms the friLdsht of Hiir^Ar^'r"''^ »^« • 

othet associations are tL con itionssofa °l5'' ''•"' '"" '" "° 
and growth of friendships. Th re" « kild"? ' '"' ^'"^ '"^^^P^'"" 
finable something, that attracts and bind,^ "f ".agnetisn.. an i„de- 
especmlly classmates with firme" anH «<^hoolmate8 and 

most other mortals can be bound it 7 ^""^"""^ '^"'^^ ^^an 
generally speaking they are all stralerTt ""*\'^"*"« ^«"^e and 
Petuous souls, will be attracted to each t^" ""''' °'''"- S"™*^ *™- 

relationshipji^ejonahsgoufw^irsoril ',!""""' ^ '«""''- 
n.ght. Such friendships are rar.7vLT'' "'^ '^'*^" '^em in « 

.ncidents „,ay „„d ofte^ do .lad o ,ife Ion" /"'i\^ "''"^ ^""'"^ 
are however, ihey will as Fn. '^ '^"«^"dships. If they 

t^he holy laws ofthisfrieLh" as noUon^ T''. "'^''P*^^ ^ '" 
by their impatience of its openC T\'^ P'^^'^^''^ *ts perfect flower. 

however, find to their exquSrsatisfit! "J ''""' """^^ « »'°>« 
of air warm their lives. th\t they h^vt 'f ",:;-* »^« »*«•"« currents 
same star. or. in common parlaLe are ?"' ^^«'^" ^° »»»« 

these souls brings to them each " ""««"'«'• The alliance of 

which quickens thought kindles Zr ""r"*^ "'J°^' ^^ P'-«-e 
all mankind. '*"" '"^'' emotions and relates them to 

thatrr::;^-^'^ «::;!; rsr rr^*^^ ^^^-^^^°- 

.nay past the two first years or even h/...'"^ 'P'"' ^""^ «« 'b^y 
without for„.ing a sing e frLdshL r!^ h ^'^ ^'" °' ^''^^^ -«"rse. 
dents with equal reserve andtfi'„"The'? '" ^'"'^ '^""^ «»»' 
out without a tinge of regret B^ f'^he "^' ^^^" '^^"^ ?««• 

pa^ without tasting the S^its of frindshirre" •\""'°'' ^"^•- *° 
good to fellowship with common mortaJsT; an " "*.'" "" ""^'^' *°« 

-JriratdHTa^X^jj^s/r^^^ - «- -- - 

-ner in his famous p.m ''V^'^'^Z^:.ZT'^^^^^^^ 

















lllll 1.8 




S^ 1653 East Main Street 

r.^ Rochester. New York U609 USA 

JS (716) 482 - 0300 - Phone 

as (716) 288 - 5989 - Fox 






J * »»..,, Hpnrv Hallam. celebrated and 

^.tween Alfred ■^^^-r:^^:^^^^^^..."^- Memoria.r 
idealised in Tennyson simm«t«Un^ of these distingmsh- 

The« is something in the *tttt"de an P ^^^ ^^^^ ^^^^^.^ , 

«1 college friends that comes near to he w^^.^ ^^ ^^^^^^^^ 

There are few of «»• "^°/° "° ^^ d^^n^ °»^ «'"'^- '^'^ '**'! 
toward some ^^'^^^.'^^''^'^^^Zis o!r^...ris have throbbed 
felt proud of our fnends ^^^^^ "elieart of the lover who hears 
„ wndly. when he 'vas P"-^^^;'^;;^ h,,e idealized him ; over- 
the applause of his new made br de^ .^ ^ ^^^^ ^,, ,hat 

estimated h,s conscience his virtj«^ ^^ ^^^ ^„ ^,,. 

belongs to him. ^^l^'^-''':[^^T Ttis true this feeling of in- 

tues and quite worthy ^f^^^^^f^^^^^hip endure ; for equality m 
equality cannot continue and the fne^dshp ^^^^^^^.^ ^^,^^^ 

IJery relation is an »"<^«P«;.^^';„;° in each other's presence, they 
they are perfectly -^^ ^^^.^d t^e one will never suspect the 
will not be known at their best . ana ^^^^^^ ^^^„ „jt to 

Tb^ rmrm^rourrrSlni have done us no harm, but. 

- ^^t:^:s\:is^^ an ^y ---r^r" s 

i„g them. Friends must "°\^*^^'^,;"^^^t and long continue 
cannot reform each other eve.y tun Uiey m^^ ^^^.^ ^ 

to be friends, and ™"^^. ^^*^™"b_,t%„owing for differences of 
is to Uke each other at the individual be^.all^^^ to forgive a friend 

opinion and temperament. It ism ^^^ ^^^^^^ ^^ 

tJan an enemy because of what we «P^ .j,^ fri,„d, hence 

natural for the enemy to wrong us ----'- „„^ ,^,,,^ ,or him 
the magnitude of his °ff'^fJ''^J^^, The one. however, who 
is founded on a ^oc*. °f ^""^"^ ^ete T^-te the sacred nectar of 
cannot forgive a fnend ought never x friendships so in- 

Sendship. I"«-^^"^,rrfeiStnTtudentlife. The boy is 
dispensable. ''"^ ^^^ ^ HntlsfSer bearings ; together with his 
removed from home «nd aU h fom ^^^^^^^ ^^^ ^^^ ,, 

classmates he must fig^t his way ^^^^ .^ ^^^ ^^^^^^ 

„ore than the faculty o' g^^-^^^^^ii relations not only to his 
of getting out of It. He bears cen with many 

own class, but to ^^^^^^^^^ j^^^Ll with his own. A college 
whose interests seem not to be dent ^^^^^^^.^ ^^ ., ^^rvives 
friendship must. ^hen. be a^ ^^^ ^^ ripen into an en- 

cla.s-storms and »f ^'^^^^f .^^^^'^^''^ith the years, and with every 
d-i'^^^^tt^trttntirrtrrnsLd. the immediate object and 
expansion of inteiieci. uu 
dwells and broods on the eternal. ^^ ^^^^^ ^j,^ 

When a man graduates ^^^^I^Vafafe bought a^^ 
bitter fruits of the ^"--^'^^^^tt'iSt nauseate, and his soul be 

,,ery --'^«\^»^ Tt'^^eslVu banqueted from time to time at 
fined with loathing^butunle^ he be q^^ ^^^^^^^ ^^^ ^^^^^ 

the table of the gods, his taste wi 



P;p.tTe VrZ r„tT ^"^^ ^'- -■'- ^o eat. But 
days who wi„ occasiona, ; Zl t"Z V"'""''' "'"^ '^^^^ 
and s,p the wine of an enduZ frieS" "" *° ''■^'' '""^ »"-ead 
lege pranks and interchange .^/'''P = ^ ""e^unt old col- 
ear that has not been PuS b:tetd".U'^r '^ '^"^ ^^ - 
We can scarcely imagine anvtMnJ ''^dicated to this holy office 
keep the heart you„g^ and "h nL"^. '"'"'""^ = "-^ "'kely to 
>ng. of old college chun.s wl: Tve ^o^' '"' ^'^''^^ '»•- ^"^ /eeV. 
The.r professions „.ay have called themf ""'' '°'^'*^ '''^ ermine. 
spl>eres, but there is a common po'nH„?H'''''t.'" "'"^^^ '^•«"e^ent 
nnnds meet and their souls bZdZl Z '"^' "''^^^ their 
thrown off and with the old frankness oT T'/"" ^" ^^^^^ '« 
the.r hearts to each other. The w! °' ''"^'"i *^^>'«- ^hey open 
conversation flows on like a plac.d .tr^ ^"^^.'"'dnight comes, ^t 
mates who have gone to thetV^T^, "^f ' """^^ °^ °'d class- 
ness and reverence that reveathr/."'"'*°"ed ^^th a tender- 
But the subject Which ontumes Sr hou "' '?'"'^^ °^ ^^^^ »-^'" 
gotten days, the brightness of w ich was oft" ^'^!. "'^" ^° »" ^°^- 
appo,ntments and trials, but now as sZ T. " 'i""*^"^ ^^ Pe«y dis- 
of the sacred temple of memorv it f. °"«'' '""P^'^^'^ar 'ight 
jar. not a discord and v^t no^ J ! ^ '"""" °^ «nchantme„t-not a 
days when they .ere u^ er^rX Hf^th 'V^^^^^^^ °^'>*^- 
"1 the white college on the HHl ^ ^^' °'d class of 

J- \V. K. '99. 



This is the season ofthe year when th» 
Pect.nga summons to the bar of n.r ^^^ anxious student is ex- 

the vulnerable points in thrstlt art'"'""- "^ '"'°^' *^«' «" 
expects to gain a "pass " ififT ^''"°'- ""st be patched up if he 

where the instruction stimulates tL?. 'T^^'y- " « imaginary 
plication of all his powers ifs rell f'"' 'l ''•°"^'>* «"*^ ^he ap^^ 
and is doled out piec':mea in v ew of „Tm'" !, ' "^*^"'^"°" '« ^-^ 

The poor we always have wlt^us "nd^. *^ examination, 
or will bean ever present factor ul'ltH *^^ •«<=o'npetent instruct- 
comes with its enlightened public r '^^ educational millennium 
and broadly trained t^h^'^"'";'^"*""^"*' '"^elHgent school boanJs 
-eonly one to blame forbad ^^Z^l^;:!::^-^^ 




Justice compels me to say ^^''^.^^Z.^e^m^^ antiquated in their 
ipectablebodyof people even, theyje^^ q^.^^_^^^ ^^ 

„.Uons. -d JilUevou'y w^^^^ ., 

amination. But juBtice co i^ l^^^, „[ 

,h.coa..geof their ccnv,ct.ons. Jf^'^ °'";' ^,„„ „,.i„j ,„ „,.te 

"•■ '? '^:r:oth?nt^ t^er:^^:uo:i*s.mch e„„e,«. 

ri».t.o..o.h..ty».r..ndmd,ges^^de... ^^ __ ^^^ „ 

B«t wh.t »'^/- f J j:^,Vrwe dare not «Hte /M»« 
„„,o«e..y5. No.«.at.o« ,.,„,(„„ ^ ,be Kxaminat.on 

on the ;><»" »"^* ,; '^do with the examine,, n>ay be a.ked m 

Temple! But w nai ivm y «» j„ i,:'mcplf to a wrone, and allows 


to be perpetuated a system that induces a fee ^^^^^ 

iug ? If we judge that th,s ^e-Pl^^^^^^X necessary part of 

"in rrtr-r^sT ira^;\ition herore the educational 

throne the Board of Education —/OM"/- 

^'Tan examination is to 1. a ---". of ^^^^^^^^^^^^ 

r Tu "HTstufrLra^fpTer;! t^^^^^^ -<i -. 

^ell as to test those exammel -^^^^^Z J^^^^^^^ ,f ,he estimate 

wor. is paid for ^^^^^\°llZZ:fiZTceL for every paper he 

^'''J " 'd^marTfor col m "cu Jion or teachers' license, and> 
reads and marks lor coi examination paper, 

some instances he is requ-.^^lto P'^^^'^f^' ^^^ation i hope 1 am 
This work is usually done durmg tne summer vacat on. ^ ^^ 

betraying no professional ^--^^J^^^^'/,:^, f^ L length. Then 
examiner does on f^f. "P ^^^^^L^rugTh brain : if board at a 
a lightning-like calculation P-;«««-«™^« ^^^^ f^, ^If and fam- 
summer hotel at a seaside resort costs *'^^J^''^ , \^^^ „,^ 
ily. how long will the fun last at ^^'^f^^^.^^X which Sisyphus- 
Jlv«i. every ^^^^^^^X T^^^^^r^Z^:!^^^^^^^ -urHng 
^so" "uT LuTi'lir ir i:ioL n^t take his task too seriously 
or imbecility would be the result^ knowledge of circum- 

liLTKteCr «- 1^ "--- »- ""■■ 



»liow it There i, a j^j LveUf^fr °! "" '"""""I' ^^ »«»" 
jxcep. where .„ oeca,i„„al jIkll™:^T'^.' """j'"' "° -""'"ion. 
Ms ,„ make c»,e fact c^.i.'lrr, ^eT"'" '"' ■""'"' """^ 
To give a few exaninlei ■ A. .. ■ 

"tream." •^'^X quick passages when influenced by the 


•'Dickens wrote Vanity Fah- ^ !. '^'""'" ""'='' «» *«•" 
^-;^te p.ays , Spencer w^t/Slr^ ^i:?;^ .^ J-- 

in.n,:Sr4trdVat - eon,uerCanada. They 

adiswere disaffected and l^ ,r/oin J^/ n'v^Id^'''"^''' ^''^ ^'--^ C- 
contrary they showed the best soirit LnH ! J^ . ^ ^™""- B«t on the 
Americans were victoriousTntS Iter 'r^.''°'''^' '° sholder- The 
be defeated on her element." "^ ''"' '"^'^^ ^"«'«"d wrathy to 

"Then he (Cartier) went further up the St r„ 
some Indians who tried to misled telliL Jn! th. '' ""^ ^^"^ *"= '^^^ 

along the course. But Cartier put hi trfsfi^ G^ ^T """'" ♦°'"«' «" 
the country until he can.e to mont RoyI? - ^"^ ""*^ '''P' «" "ploring 

amination system .. Is there any Tee'^^^haTth " "^'^'^ ^^- to student, teacher and examiner «>, ,!, ' '^'''^' ^^^ssing 
rible regularity and freq- e„c> T "f o„nir "'"' "'*'' «"<=^ ^- 
measured at intervals let it l^ an honest /? *° '^ ""^''^^ ^"^ 
their capacity to receive and mptvoufff^'""'''' "*^^ « *««* r 
berof facts, if we must havf ex!n ^' ''^P'^ ' ^^^'" "»"'- 
source of strength notof weaknl' ^I^ T ''' "'^ ""''^ ^''-> « 
then, be fair tests. Let them icur a^ '" '?' '" ''''''' »>"» '^t 
pected ; certainly not at the nTof a rm'aTa?^" ^'^^ ^" ""^ - 
mind are exhausted. Let examinerVfr ™^ ''■^^° ^>- «"d 

ate the quality npt ..^::^':;Z^:ZrTZ Z ^ T^'- 
has been assimilated not simply ^ather^ a • I ^"''^''^S^ 

the value of .such papers is wort'h p:^:;^^^ tet'i t" ^"'""^""^ 

Foying lor let it be at a rate that 









■ W 



iiirinff that trying period. ^. ^, „^y. 

; ■ I ■ 

•»»*»*• •^»»»'»^ •'*•*'** •'***'** 

I Have Dined 

,,. w. T. Stead thinUs t^^^a-d shoujd^adopt ^^^^ve 
phrase as a motto for the next ^^J^'^^^ ^.^^,, ^as arrived for as 
territory and power has been ^^^^^^f '^^^' , writer is not poli- 

similation. Whether th,s ^^ ^ °^7;^;;f//,, ..holar enough to give 

study as he plugs away at ;t fro- Je first ^^^^^.^^ ^^^^ ^^^^ ^„,. 
May. Tbe student enters ' P^^^^„^, ,eene- shifters 

tains are to be P""f .\^\*1\^°;^'X„^^ they are, or. as Emerson 
called professors and he is to see tm g ^^^ ^^^^ j^.^^ ^,^. 

putsit. -'the boy behevcs there IS a teacher ^^^^ ^^^ ^^^^ 

dom.- How disappomtmg ^^Jf f ^^y^, ,Ja on the Treasur- 
term. The student .^-covers that the f^es^ ^^^ ^^^.^^^ ^^ .^ 

er-sdeskdo not entitle h,m ^^^^^^V a Telescope. The profes.sor 
only permitted to sj heaven ^-f ^a^t^^ ^^P^^ ^^ ^^ ^^ 
cannot carry him pick-a-back to ^^ ^^^ niist-girdled 

Evangelist who points across the P^am to w ^^ ^^^ ^^^ ^^^^^^ ^^ ^^ 
horizon one can ^mily see m ^^^^^ ^^^ f^„,,, d 

spond lies between. NaturallytUe ,,hres of thought, 

talks a lot of nonsense about books bem, v 

etcetera. j^ ^.j,o have weight 

But vacation com^. as do al^^th^in^,^^^ and swings a ham- 

with the powers rhat be "f^^ .^jnthe peaceful-grown foot- 
„,ock under the old appletree o f^^^J^^'^J^^,^ himself down on 
ball sweater and as little t-^^f^Y^^jXy^ ^, ,,tched the gambols 
the gray -ks where in pub ^sch-^^^^^^^^^ ,,„ 3ome 

of the summer sea. He t ikes a ^^ ^ ^^.^^^ „„. 

„,ght obiect if the -"^;-Xminary 1 wUl'say among all post-pran- 
der the awful shadow of the Sen^arj ^^^^^ ^^^^^^^^ ^^ ^„ 

dial delights, whether --^^^^^"^^^^,,1^1 the little tobacco taken 
psychology, there IS nothing to con -^^^^ ^.^.^^^^ .„ ,,,,, , 


^ ^^l:^r::tr^: — ^-^ Ashereadsthepoet. 

1, ' 170 



than all human strains, he see« »».» 

ni.'htandclayatVV„.fvil,eXp;etSt "' "",7"''^'' ''^ -^-d 
•« ".ore .nspiring to a young m ni tj^^" ''' ."T^' ^^ '-«"ty. What have been to hi„, as\ nLh ma"e „ '' '"' ^""-^ ''"^«»'""« 
the baptism of poel.y. There is „„!u'' "''"^ «'«"fi«l from 
'-'"losophy an., poe'try haJe L„ '-'h , ." "■^' ''^ "«^ beautiful 
»nes to put asunder what Go^sT , ''"" '""""J-dhe who 

cheated o. the blessings of heaven t is? '''"'"'"'^ ''"''•'' '""-'f 
>n our text.books in the winter tl a w^T ""' '"''"« ^•'•^^-' 
her -.. the shady nooks in sun.mir Th '"" "''«^'^'^' '« '^'k for 

a.ry to touch with her hand the homelike ^,r''°" — as a good 
l'":s or listens to the lyrics of sea a7d fi , , V""'"" ''^'^ ^^' ^een 
suting in the ashes of Geometr a„d „ ' '""' """^^ ^''>"'""c 
he bnght garn.ents which are' her due T T ''"'"^'^ ^^^ -"''' 
he prosy labor of the past b.ars fruit , ''^^^' "^^'^^^ ™«'"ents 
hours we devoted to study i„ the wi iter "•' "'" '''"''■"' '"^^ *»>« 

" >s a pity that some of us canno 
sell them to necessity. Too „ an " "f " "*"'' ^"'^""^"^ *'"t "»"«» 
-stead of rich, and although tie 'forn"' "" '°''" ^°«* '-"^'"^ 
stone to the latter when 4 come to H ^T " "'"'"" ^ ^^epping 
world in our several summer aCations"' '^'■^'*'"'* -^^ the 
our planning how to make ith '„/ '"" '""'' '^'""^ '""^^^ "^ 
room for the anti-dyspesia nap w^ h i„ t:"T.. ^"— "- "ttle we promised not to adv'e one ^ "" %"''''°'^«''^-°- 

feasting. Very few however are Z^ . t ''^ '''^'^^ ^'^ collegiate 
The melancholic poet Henry K rke'^'S h'"^ """'"^^ ^-"•"«- 
attorneys clerk al! day. used to thank (c^i o ? "'*' "'"^'"^'^^ «« «" 
h.m of his nights. However n. c"we ,^ ""* "'?" "' "«^ "'^"^^ at our individual dispo.sal while at co. '''"'':"" ^^^^he lack of 
must surely here and there yield „' a lew ^^'' '''' "''""'''' «^««°" 
do as we please. That fo „„ t^ wh"T ""' "'"'^ '^^ '^«° 
summer night. The writer realizes tl, 7u ""'"'" ''°^ ^o use a 
of the Cad the su.n.u. *. Jl of t 'e Jmume' ""'"^^ '"•^^'-"- 
and a dainty piece of muslin. He also re T !! ' P'"*" °^ ''^^■<=^^«'« 
same formula, with the ingredients oerh!'" '" ""' ^'"'"^ '^^ 

satisfying. But to the membe lof the im' ^'"'''''^ °'-^^^- '« ^'ill 
I'ttle too old to be frivolous and no vet w"'""'' ^''^'' ^""^ ^^^ a 
nothing worthy of study there is eveftr^r '"°u^' '"^ ''^'"'^ '^^^^ ^s 
"The sweetest of all pleasui^s Ts ' i, '"^ ' ""^' of Watson. 
Such is what the vacation X%:a„Trif 'r''"''^' ^^'•^'"*''' " 
opportunities slip past him. When the „,n " T'"' ^'''^ '^*^ 'h^ 
.899 dawns let all text books be ban.shed Tf'"^ "' ''^ '''' "^J"-- 
from our Differential Calculus let ns ^r^„ . " ^^"""* •'^^P a^ay 
•To-morrow to wrdll"; p^Sle^n^.^f *"" '^^"^ ^^^ 




1 1 


f ■ 










Soldiering In Canada 

norance of the circumstances of the case. .» „„ ^ ,evel with 

,„ equipment and training ^JIJ^^^-^U jL .U^^^^^^^ 
the trained -^i^^^J^^^^f '°P^.'"^;°3ffi^^^^^ is measured by 
in one acceptation of that ^^'^ = ^"* ^ '^'^^.^^^^^^^ i.Uely to be made 
the extent to which they meet ^^e f-jd; Ja^ are >^^,^^^ ^ ^^.^ 

upon them, then up to the present ^m.e ^^^^ ^^^^ ,^„ ...^ign 

efficiency. The only ^"f «^™^"* !' „dghbors across the border, 
sources in the past is a ^ ^ Jj'^.^J^ ^Z;^^^^^^^^^^^ volunteer forces 
and whenever such a '^°"'«;°" .™^^^^^^ i„ the suppression of 

militia will Show us its position as to efficiency. 

mihtja will snow f- ^^^ ^^^ ^^^.^j 

in the first place our ™>l'tia «• divi ^^^^ ^.^^ ^^^ 

forces ; as will be seen fr^m ^^^^ Jf^ aeTa^ain into active and reserve 
land forces only. This latter is divi g , ^eer regiments and 

forces ; the active mi litia ^^'f ^^^^ ^^"^^^^"of Canlda between 
the reserves constituting all the male inhao-t ^^^,„ ^^ from 

t^'J^:^"^^--^-^^^ ,,.ee 

"^''V H\vr„n^rRoyar Canadian Artillery, having battery 
Toronto and Winnipeg , Koya Reeiment of Canadian 

.Utionsa. ^"8^'™ »"/ °":,'^;„I'^ J'S^l ,W^^^ «« and 
Inf.ntry whose tstablishment ■= ""■'"° Toronto, St. John's, 

.hich has »8im.n«. ^^ m n nt sU.loIrLsii.n.e ih».s 
P. Q, and Fr^lencton^ 1^^™ f .11 rank, can b. prepared for 

"' "'"rndLn, :S : ISrs «nst have certificates before they 
service and from wnicn provision ensures to the 

SJdf ".r :«rwr." tLU . t^he pHndple. of the .« 

"'"'tirt^o' administration Canada is divid^ int. twelve 

For purposes o ,, f^^ „r „hich a pennanent 

„,i,i,ar>d,» thesnpen-^^ ^^^ ^^^^ _^^ ,^^ 


rrpe'::rn:rrror rinr v^can-ps .-^c each 


battalion a)>out tu-^i. i . . 

'^ '"-" pleasant, although «o J' ^rs "T r"''l ^'*'' "^ ""'«' -^^ >" 
'«'o" are .so.„eti„,es heard ,o ccTlbrr ♦". • ''^P^ho.ulriac dispcs- 

The dnil our volunteers Ket at th 
as can give then, anv adeguXn^ . """''' '" ''^«^'*>edly not such 
rew years the pro.ran.n l";'' He rj/"!'"' T^'^" »••- '" '-J 

•'"" : -.! in the aftern'rn" is':; 'T" """^ '"'"a^ and eon ^n 

bnKadednll. Then each con, n". 7.1 "'''^''^ '-attalion or 

bn^^ade guard and going on X'Z d f " f ""■" *''' P'-""">f the 
->f.t.on to n,aintain ort inThe ' ' J "' "' '"''' ■■*' ""'>• «" >"- 
or the nu-thod of such procedue „">;/"'" ''"■^' ""'^ knowledge 
one day rifle shooting which l r '^*'"' ^•^'^'' company ha, 

spared for that occup^ation ' '" "' ^"""^- »" "- tin.e tha't can ^ 

'lone^'^::^:;^,^;;^;; ^t, ^l:^ ; ^- -tcent of the .or. 
".any deficiencies that cannot be ZVT'" "'•''' "•""^'' ^here are 
t"re ofthe public revenues that r*" ^-''f"-' a «reat expendi 
•ly.. altered for the bet I ' w tho'rn/'r"'" '"'"'^'^ '""^ -^- ' 
win be seen Iron, the above J'"''*"' "'"«^h 'ncrease of expense It 
at can.p is ...uad and ^a TrilT'"^;'^' I': ''"'l^of the'Srilldone 
t'-at drill of this kind canandotl f„T ?''' ^'""-^■•*' ^-"-'^ed 
quarter. th„s sparing the unnece fa' 1 ' '^"'"P^"*' ''^a'^- to the district driirgrornd?- "^""^ of bringing theco,,.- 

to ensure regularit, even .^ ^ti^. relt:?' "" "■''^^*^"^ '"°"-^-- 
when watching the confusion il tr^!f 'r^""^"'''' ' '>»ve thought 
movement such as wheeling in LheCofTr, "'' ""'P'^ ''"^«''- 
wheel.ngofa battalion in c^.llrhou m ''"'' "^ ^"^ «'"'P'er bullets would render thli bat'Io!"' '' '"' '"'^^^' "^^ ^ few 
yond the control of their officerf TuITT "'""' ""''^ «''"-^ Ge- 
nual camps, if our .„i,itia is Tnl„v wa. f "" '""' ' ^^ ^' <^"^ «"- 
'« not squad and company driU VVhl^ "''"' '''' "^"'^ "^ 'am.y- 
>n battalion and brigade movemrnts "7'"' " ' '^''''^' ^^^"'"^ 
-n attack and defe„"ad; T' """" '-t.uction 
post and picque. duties together with s^ '"' ^"" ^"^^^«- °"t- 
jeneralknowledgeofthewTo lang ofati "^ will give us a 

't seems to ,„e. we might "lave whhou, u ?"'' ^^'"'"t-on. This. 
. it is true that our e^u lent sTfi" '""'' '■^'^"■''^• 

-certain respect, before th:sTr:;^„^f^^^^^^^^^^ be in.p.oved 

«onnu..l be provided with and instrno^^. ''^*^"' ^'""'^ '«ttal- 

n.ent as would be necessary n an TcS ' "" "'"'^'' ^^-P- 

most important things in n.odern U^l^^ t"^"*^""""' ^"^ of tlie 
-tokeepthefiringlewe^ ;pS;^^ -iL.d nations 

"PPiieci with ammunition. The sue 





'< 1 ' 

a« fflficient ancl active line of 
^,.. • ..compUHhmentof t*"---/; f^^:,.,,., reserves, and 
^, on between ^^-/'""f- ^"^^^..e n,aj.-ty of the nu-n con- 
the a. on parks ; and >et ^"^f J;^ ^'i,„ow that there are 

%::. ^^^--^'^^'^'^^^.riS Irkt in combined tacti.. 
»uchthm«Has.-.:ervesandamm«mt,oni ^^^ ^^^^^^ ^^ ^,^^ ^,,,ce 

we have h.d very Uttk dr,U. a. the ox ^^,^ ^ ^^ .^ ^.^^^^ 

::ve nearly always drineds.,«.ratev^ ^^^^^^ ,„, 

coHtnomoretocarryonour worM^^^^^^ ^^^.^^ ^., .,„,,, u> »- 
tainly it we mast work t«g'-;^^' 1^,^" .,f ^hc con.bined arms n; attach 
taught the joint and severa ^--^^'^l ^ ,,,^ ,bout organi.atum 

and defence. A great ^l^'^' ";;.;" "^.^^ ,, ^e now have a general 
establisl^nent. equipment, and dK^^^^^^^^ ^,^^,, „.,^. ,„,ue a 

knowledge «f -^,-"*^'^';" 'f" turfof our soldiering. 

few remarks on the probable future ultimately 

Uthe czars proposal for ''--"--"^^'^uiiering in Canada 

i„ the disbanding f ^^'f^J^n^a .'--"« -^>' - 
will be at an end. And thc.e ^^ "'^j ^^„„^ted with and 
all those of us who have been ... any w > ^^^ ,^,^,^^ ^^^ 

:Ually regular armi^.sHo.^ ^^.,^^^^^, ,,.,,,„. of the 

1 think, recognize the fact that tne ^^^^.^^ ^ ^,,^„ , 

; Lnt day projects ^-f--^- "„ ^^ TcupK.. If »- - ^^^f '^ 
norant. «"--««"»"^:,'*"^" S w Uhout resistance to the .njust.ce 
and reasoning he W.11 not., bm.^w ^^.^ ^^^^.^^^ ''"** ;"'\: 

to which he ■^--^''i''''^^\[Z^Z however excellent an officer he 
„,an will not do for a P^^^^^^^f^^^ ' „e may dare to disol>ey on 

regard that vossib.l.ty. ^ ^^^^ ^^^ ^ ^^^^^^ 

on the oth.r hand if the powers contmue^.^^^ ^^^-^^^^ ^^^^^^ ^^ 
„,entsastheylave been for yea^^^^^^^^^ ^^^ „,^^^^^^. 

later call on het «^«1«"'^\5^ Jj„ accordance with the above proph^ 
started in the tn a -^ j.„g,a„a should 

1-. The Canadian g"-'-""""'/^!^,^ vVov ide and ...aintain one 

Scome engaged in any ^.^l^;;^;^^J^X- ^-^ ''"''''' ''"'"'"'''^ 
regiment in the field dunng ^^e ca^^P^'g ^^i,„ government 

v2n talked of. " »>- ^T "^ to g« "" ^^^ ■'^" service that 
provide one regiment «f ^"f'^"*'!^ ^^i^g depots for four different 
Z four military -'-';^^^--e itTtot of forefgn duty. This is cal^ 
regiments and eac! ^^;^"^^';;^; Empire. If the movem<nt should 
culated to further the Lmp. ^^^^^ „« 

;t effect the Canadian m.l.. a -^^^^^^^ ^^^ ,,, ,,,^ 

i,ed. The general office Ma^rge ^^^^ ^.^^ this 

come to command the ..nUt «, -em. ^^ ^^^ ^^^ ^'-"\Tr 





of which I have .p. ;;':,;^7."".^"'"r •""•-■' the ref..r„.« 

^iuan,tn:L.Lt:'"j::;r ;;rr "'^-"/"-^ "--'-^-^ 

often t 1.1 that i„ ..ecasior ' Jtl '""■ ^•"'""'^•"••'- We arc 

"•«Jo-.tyofthu„. would filh ,:,""■'" ""' '■"'""'^•"''- - '"- 
vice and if they did ^et t . tL f u' '" '""" ^"*' ""''^ '""^ ••*"• 

heels when th.^.„„Xco't"'7'^''"''^''!>: '^^^ '"- 
cowardly and pernicious dJ^Hnt .^ ' . ''*''"-'^e this is the most 

to demoralize us as "uL;nt,T''' "''""'^' '" •^•"P'">«' 
repute and .hus tends to Weritseffi' "'" *''' """^'^ ■"*" ^''- 
the courage and n.anhoocl ! toT/ '"" '' " "'" "«"""» 
others in this res,H.ct S«, far !. it I '"' '"*'■" «»"elve.s below 

i« no co„.pan V in theworld that , T ,'f "T''""''^' ^« J"dfe.there 
»>ayonet charge than mv^^n , o^ Tl '" """ ''^ ">' ^^^"^ '" * 
ationofour volunteers fha Willi, u"' "" "'^^ that appreci- 

in then.. "^ '"" «tnnulate them to do the b- .t that is 

^ J- MKHSEKKAf, Capt. 

73rd Batt. 

The Mayflower. 

Bv BRA,.,.„Kn k' Danikus. Acao.a 94 

VVhen the heart of the waking earth 
Quickens the pu(«e of Spring, 
And beautx <lr. ;,n^ of rtb 
In many a s,. ,j„„g 
Then the shy arhuii. 
Wakes from a 1k-<I of ^, 
And Spring s in.,,t j. 
Opens its dreanis of 

Thou hint of a sprin 
On some far. undrtai.. 
Where the airs are ever x 
And the snows return no 
Breathe into niy life th> 
That mystical charm of th., 
Which lends thy being . „aj 
And makes thy beauty d.vint 

-From -7*., '^.^ ,a,,«^^,... 


' dower 




17 -> 

! if 

h ' 

Ff I 


Summer In The Country. 

\jonvi\nK f«'r the > »> • 
„.„gi„K to cHca,. from Ht«.» . ^^^^^^ 

,, ,He refrain that ri„KH outlTron. jny "^^^-^ -,,^„ „, ,,.„., 
vear wane* slowly to a c\m^ Some ^ ^^^^^ ^^^^,j,„„ 

orridor. : 'One more -a-naUm .m Uhe ^^^ ^^^^^^^ ^.^^ ^^,, .^^ 
joy. hearfs-ease and comfort . then aw v 

mirths and joUities. ,„ f,„ish the work which spring. i«as >♦' 

summer is »»--"'"«.^^„.^";;^; a brighter hh o,n, an.i every- 
nobly begun. It decks a.l "••^"J '" ^.^^^j, „„,, . vetN cmmon 

:hinU-tosn.ileat,tsap^^^^^^^^^^ ,,^ ,,,, .„„ „. 

sight" doth appear- 'Appafelieo in 

freshness of a dream." j,^ ,„,h and turmoil of 

How happy one feels »« *•» "^/^^j^^ ,„ ,his season of ^r.^hl- 
school life, into a vacation of ea..= and qu. 

ness. beauty and glee- ^ .^^, ^.hich summons one 

Who can resist "the cock s »"" morning ? The sur s just 

early to view the loveliness of a -"'"^J^^^^^a careering gl-rv 
„m„g its daz^ ray. above the homon. ^^^ ^^^^ ^^^^^ 
and might in the deep blue k> and th g ^^^^ ^^^^^^^ f^,„„ 

fields sparkle and gUtter w h de. . ^^^^^^^^ ,. ^.^,, 

earth's great altar send «P;''f;j J^s welcoming the birth of an- 

■'There is joy in the heaven 

And gladness on earth. 
So come to the sunshine, _ 

And mix in the mirth. 

B, chance, while -dii. adniinng the^^r.^^ 
one's eye falls on the lawn, ^^^^l^^'' Z.reS ani nation is by this 
^ith a challenge for ^ f7^!fJ;; ,,„,ent is usually waxing -arm- 
time thoroughly i"^*;":'^- J,^\,'^;;':;ing to the morning meal, not 

St::^:rr r^t:^:- -- Parritch- and-Xhe 
--r;::::^!:;:::^^ -ens, the milder sports, such 

as croquet engage the attenuon^ ^^^ ^^ ^^^^^ ,^^^ ^„ 

^Vhen the sun n ears the ^"»th j^^ ^^.y droning 

things. Deep silence ^oWs every thing^excp ^^^ ^^^^^,^^ 

if some insects. Then the ^l^^lf^^^Zi'^nJ tempting sight, 
under the shade of some huge tree, presen 


Thithrr Jan^f.ii.Iiy turn th.- su-oh nth.r ... 

;'^ - y ,.ft.„ „ ra'„.,,,. , ,:^' ;; "^' -;"'-«^ ^r ........ ,..., ,, 

' "«■ altitiKM.n is ,1.111.. If 
•• "t'-v rising a,,,! ,a„i„.. ,,.,,,; '7''""« ""« "»> "<.« .|..vv„ .n the 
;;-t wrinkle., .ar. „..;,:?.. "^;j';;'>^V" -nv k.„.,. „f ..,.,, 

";-■»• ail these char,„;s is the uh n S„ ■" '" ■'" ''''"■"^ •>">« and 



The iiioon now i-i.iji,, 

sorrows the sunnner passes swift K ^^•''"'any j.ns an,I few 

ually into those of autLn^t^: ^ w^in . '^^ "^^^ ^"^'^ ^-"- 
"re. one cannot help sayinj, : '"'" '"«''*^''* •'»' *»- '"-Part- 

Bnghtly swee' summer hrijrhtiv 

h n,e hours have tloateAv ■ 

I no ratijrirs I the sky. • 

*'■ K. If 







Editorial Staff „, . , 

PERRV J. STACKHOUSK. '99, Editor-,n-Ch.ef 

H B. SivOAT, '99- 

E H. Cameron, 'oo. 

Fred R. Faulkner.'oi 

nnging Committee. 

C.J. MERSEREAU'oo. Sec-y-Treas 

M. G. White, 'oi 

S. J. Cann, 02 

Miss E. C. Cook, •99- 


TERMS. -One dollar ver year in 

BusfS' LETTERS sh.,uld ^ ad- 
"'^ dreSed C. J. Mers.rea« Sec'y 

UooI^alTother other matters i.d- 
KtSe Editor Acadia Athen««m. 



The Sanctum, 

The Late Rev. A. S. Uumbart, D D 

,. Sunday ino.inn.Ma.^9t;. by a^caU^en- 
ness, the Rev'd A^olp S- G J^rt ^^ ; ,^ ,^, higher 

. Mass., was -"7"^:^ j^,. tu^bln^as one of ourseW^. 
service of Heaven. In a ^^^^^ " ^ Doctor in Divinity at the 

having received the ^^""'■^ „^;f ^^^^ we have a mournful pride in 
Acadia commencement June ^^o^ore^ ^,3^. During his visit m 
chronicling his name -^«"°'^- ""[^"^^X A man of commanding 

^^^"^-^^^^ ^ 

rh^rt^^rsrint:. ht:r:^eUpectU con^ence of an 

with whom he came in contact. ^.^^ ^^^^^^.^^ Suddenness. 

We have said that the «"« . ^^ ^^rried him away. 

Angina pictoris ^^^ '"^^ ^^^^l^^ly^^^^. .^^c^. was thought 
Awakened at 5 o'clock in the moni.^^^^^^^^ ^^^^^^^^ ^, 

to be neuralgic, and -b-^Jf^/^^^^^'„71„ ^as no more. 

not serious, at eight o'clock the strong m throughout Rox- 

The deep impression >^hu:h the death ^^^^^ ^^^^ 

hury ; thecrowd that ^^^Jf „^^^^^^^^^^^^^^^^ to the worth of the 

d^'anrhV^lhtentr N^^^^^ Hcd. and Dr. Lonmer. reveal- 



->■ in a striking maimer ri, . " 

»h,ch ,h. faithJ »rv»„7;V<^ a" d °* r/" '""""> '"'"••"« 

IT is with much regret tli^f 

of Miss True. Principal oALd^ Set" ""' '"^ ^^^•^"«^'- 
,. occupied this responsible and iL^^!^ "^- ^^'"'^ "^^"^ has 
four years with credit to henself and toT ^""''" '"*'•■ ^''^ '-* 

her w,se management the schoothas /'*"'''*'"" "'■^"- ^"der 
every department of its life aiiH .1 '"^''^ substantial progressin 
understand is the largest f„ ^ uZrTofT^'''''' ''"^ ^^ - 

i».e noble christian character l^P '*'''°*''- 

arsh,p. possessed by Miss True mLdeher'^"'"*^^ ^"^ '''^^ schol- 
Pos.t,on she has occupied with so muci """""'' '^"^''^^'^ ^^ 'he 
True has won not only the resoect .„T, ^'^^^ ^""^ ^'Snity. Miss 
her as teachers and pupils br!nK°'!°' ^''°^^ ^"^^^•ated S 
quaintance speak in the most "l "■ "'^° ''""" *^^ ^onor of her T 
^alities. We know tha^r lotre'senT^ ^' ''' "'^"^ -"-^ e 
that she will hegreatly missed by the.; "''°^""^''«" ^e say 
.n. staff connected with the ^of^Z:::^' '''' '"' '^^^^ 
Lectures by the Faculty. ^~ 

J "Ity has met with success '"q'^'^P"*'''^ '^ctures by the Fac- 
season and the consequent pressure r ?"' "' '''' '^^^"^«« "^ the 
students, it has been tho:gr:::i,:'t:t "'^" '°^'' P^^'-— -d 
th,s year. Next year holever "h're J rh '7 '"'"" '^"^^^^ 
definite arrangements have not verT i ^ '^"' '«^'"^es ^Hen 
t at Professor Wortman w 1 p^^lbU " dep"'' '"* ^'^ ""^^^'-d 
of the course. The names oftZT. '"^^ 'he opening lecture 

on the next college caller '"'""" '"' '"^^ "«'- wilf ap^a" 

Financial Statement And Appeal 

V the subscription list of tl J A?HK"t'^^''"^ '''-> "•""'- o« 
.s equal to the vigor with which we attemnt7''^,'i'''' ''"^ «P"'^"« 
honestly our due. The fact of the ma U^rN t r ^^'^^ '»'«' -hich is 




iSoR-QQ— there was on 
At the beginning of the ccjlegey--;^^,/;^^^ ,„. 

the books of the Secr'y. treas- to the c ^^^^^^^^^ ,t,e ,ubscnp- 

considerable sum of $6,200 ; ths of cou ^^^^ ^^^^ ^^^^^ ^^ „ 

tL dues of the present year. It is now ^^ ^^^^,^ ^^^^,^,,d 

yetr and we have received the sumo^|95^oo.^ ^^ ^^^^ ^^^^^ 

with a large deficit . ,, , „, ^,„ ,. to account for this general 

NOW there may be more tb- 0"^ ;a> to ^^^^.^^^ ^^^.^ 

deference of payment. If -^ ^ ,' 7,, if theV -uld pay «P th-r 
it would be a great source «f Pj;;Xription. We are not obhged to 
arrearages and discontinue their subscr P ^^^ .^ patronage 

them for their subscription unless they pay ^^^^ ^^^^^^^^ ,^. 

^2 L not sufficiently current coin or us^tcj^ p^. _^^^^^^^ 
penses withal. Some seem to think tn ^ ^^ i,,, that would 

^not to be granted ^be consider iona„d ^^^^ ^^ ^^^ ^^ 

entitle it to ^--"!f "" " ^t^ngs will be found faithful also in 
are promptly pa>d. 

New England Alumni. 

^r^ the New England Alumni As- 
The seventh annual banquet of be ^ev ^g ^^ ^^^ ^^^^^ 

sociation, occurred on ^^°"f >'^X^S' was not as large as usual. 
House. Boston, ^bou^^ ^^if ,^er^^^^^ At the business 

cordial greetings. ^^^^^n and nntimely- 

Minutes were also ^f P^^^^tHa ^^^ '^^ ^^ G"'"^^'^' °' ""• 
deaths of Mr. ^^^f\';-2l\^l6s, and will be greatly missed. 
They were true and g-^^^'^^^^^jXcted for the coming year :- 
The following officers were eieci 

nr M C Smith, Lynn. 
President ^' • _ Nashua, N. H. 

.....President. ^^\^^,, 0. Court St,, Boston. 

Secretary "harles H. Mclntyre, Boston. 

Treasurer Cba ries ^ ^^^^^^^^ ^ ^ 

'''"''''''" ?itus, and Mr. J. K. Eaton. 

Hunt, C.eo. B. 



At the banquet Rev A t i- 
read from Dr. Trotter expfainL t'hT'h " ^"""1"^ ^ '^'^^^^^ *- 
the college, and a portico h.s 'o . 'f °^" representative from 
Visitor., on the ho^me sra .'rrs'ar L^d ''%"'''''''''- ^"^ 
t-rose of. TheUatchman- made a brt^ J. ^^ ''''' "^^''^d »• 
gave some happy reminiscences of hi .'''• ^""^ ^' ■L°"'"" 

inces more than thirty years a/o'^ "" '". Acadia and the prov- 
small college, and asserted hsstron"beHT''u" '"^"'^'''" '^^ »he 
educated mind. ""s strong belief,,, the world's need of the 

tentiroahTse stude'^s ''JltZZT'''T.' "^"^ '° ^«" ^"^ «t- 
or other pursuits, to the imXtX. r , ""'^ ^"^'^"^ ^^^ ^^udy. 
I^ockhartor .ny^elf InThrwa " ""'['"^^ '''^■'- «'''^--- to Mr 
same observation applies to .«!; oTd A " h "^ '"'''' °' ''^^'»- ^he 
through New England. If X„ tie. ''"''"''• ""^^ ^'^^""^^ 

-OU.U s.t right down, and sell .^the ''J ''"'■"' °" ''"^^ ''"-• ^''-^ 
to our pleasure, and ensure a it^eraTd""' '' ' ''"''^ ^^^ ™'-h 
every year. -Verbum sat sapient ' ""' ^"thusiastic reunion 

Charles H. Mclntyre. 

209 Washington St., 

,T, Thejnonth. 

The young ladies of the Se^iw^aT.. 
audience with a Vocal Recital ,0 n"''^^"" '"^^''^^ « ^««<^'y 

Chorus. ^/«/-r>i^/// 

2 Vocal Solo : The Maid and the Butterfl v ... 

Miss Maude Scott ^^^"'* 

3 Reading. Sisters 

Miss Lilliec" WVbster ^^''''"''*' 

4 Vocal Solo: Were I a Gard'ner 

Miss E„,ily R. Christie ^^"""W. 

5 Vocal Solo : Invocation 

Miss Lydie R. Moffat. 'i' ff^rrdelot 

(Violin obligato by Mrs. Wallace) 

6 Piano Solo : Soirees de Vienne. 

Miss Annie S. Chipman **"*-'-^«^-/ 

7 Vocal Solo: Barcarolle (boating .son^) 

Miss Sadie I. Epps. '^''""^''^ 

Reading : Preciosa (cutting from Spanish Student) I o,. f n 

Miss Ethel R. Emmenson. ^' ' ^""^f'"^^^' 




. . . Weil 

. . Brahms 

. Goldberg 


. • 5.«nresse<l with the htgh cul- 
Those present could not help ^-^J-^P ,^i,n. Each selection 

„t too higbly. .„„„,. successful in oblaimtig 

.He i^«rot Wchoto Flood D.vj^. Q- '='^,';„,„ „rived by .be 
r.:S:,ebeto«^«mS^^«^^^„„^„i., ., Mr. D^^^ 

°„"Ei:g.»b, and ^''^'XTX''^^"'''-'''r'''::XT:i 

S^^ningthe teture, e«« "" '^'™,yect "The Britisb House of 
'iU toAbe present y-' J d^ "Sg 'be House of Co«— 
'^•""""n'i.rr.rr.tJTUes coding "»^«^-J^^^^^^ 

liture was brought to a close by a ^^J ,^_ Although th.s 
J^! fnr the disestablishment of the ^"f kindly consented toad- 
^' finished Mr. Davin's engagement he ktn> _^ ^^ ^^^ 

ISsTthe "dints on the ^oUowi^n^^ "- " rposl'ble. ,,,, ,^, .as 
I Jt 'Culture and power. 'J^,^ ufe than that of 

itfnr^e.ayi»«W;^,-rrg":vUs ofM™s..f.Uogetber 
iog his stay among us. an 

The Exhibition was t-Mven in the 



LT/"f,: ^^"' ^'^ "nder Director E. H. McCurtly 
>ng IB the program of the events : ^' 

I Dumb Bells 
Parallel Bars 
Wand Drill 

Indian Club Drill 
Fancy Club Swinging 
Torch Swinging 



The follow- 








Long Pole Drill 
Horizontal Bar 
Human Alphabet 

A-C— A— D— I_A 

Hach number received much applause and iustiv «« r r 
gymnasiums in the country could bring before '^^ 

of such a high order The -Fanrv r k c P"**''*" * Program 

and the -Torch Swinging'' bv S w s u""''"^" '^' ^^ '^- ^"^«' 
'1-rve especial menUon. Those wh!„"er"h '"' Z' ""■ ^'^'^ 
enough to have seen the like ca^^n. ^ , u ^''^ '^^ ''"rtunate 

The audience showed much ad" irlrr "'u' '"'^ '""^ •"•^«'- 
n.uch has been the loZlnt fnTs W ^L^f" "'""r.-^" ^"'^ ^"^ 
Curdy deserves much credit for Z i^ster^Iy fn" JlT '''" 
gram was executed. ^ which the pro- 

take p^acfrKr:;:; eXX'r:. :r ^' "o^'^tr^""' ^^ «-^ - 

ing a. arge number o'f .ueJ'.TrJ^tcouV^'^^^^^^^ ^^^"■ 
ceived by president Farris and vice-Dresid.^nf n! i! '^^"^ "^■ 

present were a number from K vi e Cannin' w' /"'°"«^ '»'-- 
and other surrounding localilierinH^- ^' ^'"^«°'-' Halifax 

. -Id Kings." TheVl^r^ortrofv^oSl^r^t^^^^^^^^^^ 

Emerald Quartette, .solos by Mr. David P^gLn ^f St r '[°'" *''! 
instru„,„t„ duets by Mi.sses Beckwith and Mufr^ rt/ r ; '"^ 
of the evenings entertainment were greatlv enZ^" ^^^""'"^ 

diversions in the course of the conver at on '/h^ T""^ ^"'^"* 
mittee are to be congratulated on the sue ess of Jhe A^1^''*'°" ''''"'■ 
Pecially on the tasty manner in whichXrotlJi^ ^ Lt ^•^- 


by a • Xt Home. " g.ven by Dr. and Mrs. McKe„r o the^ r ?^ 

by a vocal solo. Miss Jamieson. who is .so poj^Har al ZZj! /'""'" 
^ave a reading that proved to be enjoyable Mr pTr^w^n'"'' 
sang a solo in his usual good iorm. Vrs. B. W Wal Z7he f^ 
viohn teacher of the Seminary, delighted all DresenT h ? ^ '"*' 

rendering of a violin solo. Dr Tr^Uer in A • . ""^"'''^^ 

-counted some of the topics hi wlrh^^Yds^LT hTn r^^ 
been unavoidably detained. Refreshments, wh ch at „evL "? 
come to college .students were .served Curing the evenn^^'orr'd 



1. MCK.„. a,e ^v. 'Zt^:^:^^^^Z^'' 
inirtlie comfort ot their guests. *' "« m, „„ buildrag. 

Er;a,rrrS*l'trrrJo,t.e.own ...oo,„« ..-o 

:,^UUU costly anlupto-...^ «.»'■""« 


u. f The Theoloeue contains an interesting art- 

icle on "The Religion oi o ... :„ Vniver$U\ 

...atural Science as a .eans of Dev.o^^^^^^^^^ 

^/.«/A/v is a well «""^\^^*'f ^.^L^'erLing it can be ma.le by the 
the subject is dealt with shows how interest g ^^ ^^^ i„.p„,tance 

skillful teacher. The wnter «^>^-«"« «^ /""^^j" f„g i„ the chiUl the 
ofthe study of-^"--;'^;\"i,rote:la?i.n and Imagination . 
powers of Discnnunation. ^^^^'^^^ ,^,,^„^ and 

The Man^oi. ^^X^^;- / ^ ^"g^a^e Study. ' Ref- 
instructive article on The Ami oi ^^^^ ^^^ ^^^f^,, ^^ 

erenceis >"ade mainly to French and^G.rma^ T^hey are useful 

a means to literary -Uure and a ^ ^- ^^^ ^^ ,^^„,i,,. They aid 

s: •rtr.':::^- .r„ :"r.s - .. .o.. .,„w.„a 

**'*"'■" . ,, • u.U/ic/^r Mo«m- contain m«ich 

.•Modern Dutch Artists" in •^f'^^!"'l^.;;;„ Jy- also gives an 

valuable information for .the student The Mo y^^ ^^ ^^^ ^^^^^ 

interesting biographical ^^^^.^^^^ J^^^Xr^o and Quebec, 
fathers of the Baptist Denomination in Ontan Vi 

•*t, "TVip Humor ol nnaKehpcai". 

r„„„dinfo«r^h,s C0„^'«,,^j;;; NlgUt,- and ..A„o„ h^e 

Midsummer Night s ureani. 

it" . , Th.M-n" is anexample of perseverance. 

In "Abraham I^'^^o^"'^^! Jl oeerless-in his absolute 
"In three qualities Lincoln's character is P^"'"^ u would be 

honelty. in his strong ^^^h and in h. d-P^^^^^^^^^^ 

well if these qualities were found in all states ^^^^^ Supremacy of 

-The Hugenol in America ^"•^_^7 jj 
tl,e /Vn-lo-Saxon" are articles well worth reading 

' u ^r >^ The Presbyterian College /ouf >*ar ^^^^xWoi 

The fifth number of J^^' ^^"f^' .^, ^.tention are "The 

. good reading. The f -^^ ^f ^^,t dTal Preacher" the fourth 
Theoloevof lanMacLaren and ine 
IS of 'The Ideals of the Old Testament. 



n'*rit. 'su'!-t'af'*?*e^'lil^';^^"*::^'^ '^'^ '^"'•"iderable literary 
Three Kssent.a, in Education •'. ^rlT s.'^h^' ^'''"atures • and The 
"«^W8- .^^ ^^^"*^*'"" teems with college 

Other exchanges received- j 

ve>-siO'o/Of(aua A^aZv J^^X rT^'''^'''' '^^''^''" Outlook. („,. 
>P^^-«'. ^....W. CoZj^/J ^'"^S'^ ^^^or,, TnnUy Carers t. 


De Alumnis 

Israel M. Lonirlev Sr i, 
Paradi.,e High School L th;ee ;ear' '"" '"' ^""-P«'«hip of the 

The Baptist Church at Ha t « «n. a. {,. 

ful ministry of O. R. white, .^^ ^""^ '" P''°«Pe"ng under the faith- 
Charles H. Millpr U, I. 

medicine in Boston. '' ''" ^•'^*'*''"«''ed a 'ucrative practice in 

Harry T. DeVVnlf •«„ • 
boro. Mass. '' ^^ '^ P^^^""" «f the Baptist Church at Fox- 

Chas. M. Woodworth. qo ha, a„ . . • 
«»" City. 90. has an extensive law practice i„ Da*- 

John E. Eaton, '90 reside, pf r.^u 
rising lawyers of BosLn. ''"^^''"' ^'^'^- -"d is one of the 

'ook";?Mi,"^;;ton' nT'-^'" ''^ '"""•^'"■"^ '-' paper, the-Out- 

^^^^Zr^-r^^^^^^^Z^T^' tour Of the 
^^.^ ' i- Starratt. ,3, is taking a divinity at Kings- Col- 

Shirley J Casp v, • 
Mass. '^'^•^' 9'^' '« P-f«sor ofCireelc at Xcm Ha„.pta„. 

Mary H. Blackadar 0, is in .»» ^ 

tute^waitingforthe Mis.sbn Cd to "ohT" '' "'' ""^■'•''"'^ '"«'•" 
the Foreign Field. ^'^ "^*'''" "'^ans to .send her to 

M. AII)erta Parker o, j 
^Jernian in Boston. ' ^"^*«^^^ '" translation from the 

rX Livingstone Pari-^^ • 
,, ^ on. larker. 94. '" P-tor of a church in Illinois. 

George D. Blackadar • 




r. A •„, ill studymg (or the Presbyterian min- 

William W. Conrad. 97. « «»°> * 
istry at Pine Hill. . „t Oxford on the 3olh..ult.when 

Avery pre.ty wUdingtook P^«^\"* '^.''J°'^„°^a« to Mi»a Mar- 
Ed.t Howard Moffatt '96. - ""^ted ,n^-^^^^^^ ^offatt^of 

garet B. Robb of oxford N^S^T^^^^^^^^ ^^^^^ ^ P„rfy, 

Acadia Seminary, and '^^J'T'J good wish to the h.:ipy couple. 
.96. The ATHKN.WTM extends every goou 

■ WXW*! 



Here And There 

..T,e, . are more things in'hl^Tn and earth than are dreamt of 

A holler place-the mouth. 

O Skaw, little Freshette. hun^ up. 

The current faculty invitation__-'S^p. with us." 

Uaderinrrayer-meeting .-.^metimes a smile is more potent 

*^^l";:?htreare:f '"ves especially when its from a Sem •' 

..I suppose you^^w whether you are all i.ere or 
Professor. "I suppose yuu ^ 
not, those not tare »«y»^; 

'^^JtJ^:::^^^^ -'»„,.po„..s 
■"* he b«.rd ofeditorsioi. .» eo„gr..».atio.s .„d .ish the ,o„». 
brother success. ^ 

Needless to say we .,. ^i-^^ - f^" Jr:!?' e^:-he X 

toresun.. o.r^r^.,«s^^^ ^^^^Tr^^^t, of April 3«l. «<»- 
Wl shared the general leem>8.0^t ^^ ^^^ ^^^^, 

-r;Xrid^^:=!n-edh, hem. t»«. 




Soph. ;Fe„n„i„e._er.r.r.^„,,r„V 
'rof. Yes, yes. so it appiers.'- 

remarks concerning the perfo „!a„o. T '^ '"^ ^^ ^ and sarcastic (?) 
»essgo^..«(toconfront'Tit?"rZ' »" l-'^ormers win doubt^ 
thatasubscription has been lnSr> ^^ "^ ^'^^ »« state 
••Manua,.r.ti,.ette.or:wt;rZrrinrb.t': ^ ^°^^ °^ 

legeS..."^ '"" ^'•"•' ^•'^ '''•«^- •" the nether world have col- 
VVi^isper. ..ves. the rreshn.e„^„po,ed thei, ,en Tro. there.. 

No insinuations of cou e "'^ ^'°" ''^ ""* ^^^•"^• 

Hel'ir*'!^'' "'"'" -"^ ^«^ne. 
He stalks about the college 

His hearf,rect you'd but expect, 
That he was filled with knowledge 

When on the street sweet se..s hell „,ee. 
He 11 bow so condescend///^ 

The frigid rtare and icy air 
And awe-struck feeling lending. 
But not a jot cares he for aught 
And some have closely reckoned 

(Tis truly said) five motions made 
Four motions he will second. 

The trials cfthe local editor - 
.j„te/° "•" '^"">'°« '■""«■« fifteen „i„„„„„ ,^i„, „, 




Prof. Win you tn- and nuhduc the n.ise in the b«ck ge«- 

''''Tph • . wish you feUo.H .ou.d thro. the. necW-tie, nut 
ofthe!lindow. lean hardly he^.y own ear«. 

r.reat SroU, did you see Hutch up in the gallery at ... recep- 

- o« imiiiisitive freshman, who had 

ly regarded ni» fair partner and mused thusly . 

you. what in the world was .f (a long pause) U > 
home with you ?" 

Sympathizing fneno ^^hy ^ ^"'^"^ 
..Hang it all man there were only four Sems. 

u K. .-t nf those who might entertain erroneous ideas on 

For the beneht °f ^»'°^ J;° !" .* .^^^ t^e voung man from vSus- 

the subject. ---«'r*=^*^*^'V\ rat church, is not yet a 

-. -^'^^^^^^"tttpoTrof t^^^^^^^^^^^^^ ^''^^ 

Sng^^tliS^ unableto reach the Sophomore .ats. 


.We call a ship. she. do you know why that is ?" 
■•Because it is hard to manage.' 



AMDMENTS (Revised version.) 

Thou Shalt not prefer any 

other college to thi-3 one. 


» fK^cplf anv vain ideas of thy greu.ucss. 

thy knowledgi 




_. HI 

Thou jihni? not look iiiw,>n >i. • » 
vain, for the prof JmnTl I ^ '"-^'"^«">" "f thy profeH«o „, 
h.H instructioi as vai" "' '*'"''*^"' " '"•^^-' -'><' ho, 

"""""*"•■""""'"'«>-«"<' k^P then, . strictly. 


Thou Shalt not work thy ponies too hard. 

Thou Shalt not ,., the S.n.s on the strc-et. 

N. B.-Our revised reading for the ten 
crowded out for lack of space koZt i » • " """ ' '*"* *^ "» 

tained at the Sanctun. for'u.t, cen^ '"'""•' ^ '^'''^ '^ ^ * *- 

i^ ' the- 

fim Iv- 

As upon the midnig-ht dreary, 
Working hard as usual, weary, 
On a task that made me sore • 
In a realm that's so confounding 
On this column .' was pounding 
Which I twice tried before. 
And I vowed ere it was ended 
Ipon which so much depended 
I would try it nevermore. 
Then I prayed, I plead, entreated. 
For the I «o much needed, 
But I bluiidered as hefore. 

I have liv-^ to tell the story 

Not for love, nor gold, nor glory 

Will I write this awful column evermore 

i ^1 





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Unity of the Empire. 



^ f 


: ■ 





^ 1 






-*_. . 


^ i 











The Unity of the E 


The Alu„ni Oration, delivered the 20th of J„ne. A.D. 1907 .t 
the Encaenia of King', College, Wind«,r. N. S. 


of .his great iS^ta cT^m 'c ebr/rin te'" '" "'■"'°"' 
completion of forty year, of S S k^t^i^ rS',"^' 

;r::,rs:.irweTvr.^rr "^* -^^-^^ - 

word. Webo»st,,f boast bepermissibIe,of a tcmtoryalm~t 
limitless in extent and fabulous in tlie wealth !7 1 

a^t highway with its hands of steel stretchingirm' 
cc^to pn and two others in course of constructi^H^ 
a foim of government the freest and best yet devised W.S 
r' "Z '"f "°"^ °' """■ And all this acc^plthit 


better than they knew. As is often the case with great en- 

., j y, | ^aHy*jt^-«afe.. ■■ ifi«iMift i ir aa B- .. ..* i i.n..^n-« *.^ 

' V 


terorises they encountered what seemed insuperable difficvd- 
LT U was said no permanent union was passible witi^ 
^ tZZs elem^ts; tha^ trade c.^ not^^oj^ed 
from the Maritime Provmces to the Upper. no m 

subsequent steps taken ^o^ the ^ ^ Parliament intro- 

civilized man, and that its P""^^"^ iustified on the 

ground, of '""^y- JiV=^^, Land have been carved 

than fiction, out of th« Great UMeLan 

a,ree Bourishing Provinces, mto » f^"'^ f ^ 

hundreds of thousands of """"P^". *Xtv rf^ Their 
world, attracted by their marveUous i^^f^ ^^^^^ 

^1? "^ «t 'STtwr^StrSt created, it has 
tTs:,"' -..."her the whoie ^^7 - ^ 
Republic of France and your England and Sc^^^ "„ ^ 
fh^l find place for then, in *- mo ne» ^^"^f.,, 

also, «hen it «as propos^ '"^H ™1^" op^Mon. In 
Continent it »as met with most drtcrmm 7^^<„, to 

,88o a resolution was '-^^'^,Z.wllTV^^o^ Moun- 
suspend construction at the <«*!''= °'*^„X credit of 

Sh <!SnIltw°as said ^^^^^^S ^t 

The Unity of the Empire. 

nW- 'S undertaking was carried to successful com- 
^t.on. The veil of the Great Lone Land was lifted. X 
sea of mountains crossed, and now this national highway is 
changing the current of trade and travel of Continents. The 
Canadian Pacific Railway now owns and operates 13000 
mdes of railway, together with a fleet of 186.000 tons, yidd- 
mg annually a revenue of over seventy millions of dollars. 

already attained, it becomes us to pause and seriously con- 

^nsaM''"W°"'."''''"u"'*' ^"'^'"^^ Well has it 
T^^n r^ '"^^ "**=^'^ *^^ ''^^e of the ways." 

ITie overshadowing question of the l.^ar is:-«What is the 

only be solved m one of two ways: Either separatic^i or 
L Ctit ma?r'''; '^"^'"'' "•* ^ -^^ ^^riving 

u neiX' n^"^ '"'"^ ''^^'■^^ ^^ «>-^ '"o- power- 
ful neighbor. Or Imperialism based upon the prindpte of 

w^H rT "'^ ^■^'''* '•e^Ponsibility. Firmly unit^ we 
would stand four square to all the world. Federated, other 
na ions recognizing our power would court our friemlship. 
thus leaving us to develop our resources, preserve our coJi: 
merce and advance our financial interests. Federated, we 
would constitute so great a power as materially to lesset^ the 
possibihty of war. thereby subserving the best interests of 
humanity. Since 1887. the period of the first Jubilee Con- 
ference. attention has been focussed upon this most import- 
ant question The Diamond Jubilee Conference, ten years 
after, as well as the Coronation Conference of 1902. served 
to accentuate i^s importance. A still greater impetus has 
been added by the Imperial Conference just closed. What 
It may be perl.nently asked, has been accomplished by the 
Impenal Conference of 1907? The following may be 
claimed as some of the results achieved: First, the 
Conference is made a permanent institution to be 


I 1 

7%« Unity of the Empire. 

hereafter styled "Imperial," and held every four 
years, and not as in the past, an occasional occur- 
rence coincident with some great national state func- 
tion, as Her late Majesty's Jubilee, twenty years ago. 
her Diamond Jubilee, ten years ago. and the Coronation of 
King Edward in 1902. Second, an ExecuUve Committee, 
or Secretarial staff, is to be created as a permanent bureau, 
in the Colonial Department, the purpose of which, during 
the intervals of the Conference, is to keep the Home and 
Colonial Governments supplied with information; to attend 
to the execution of their resolutions; to conduct correspond- 
ence on matters relating to their offices ; and to gather data 
bearing upon the industrial. 'commercial and political inter- 
ests of the United Kingdom and her far flung Colonial sys- 
tem. This will, doubtless, tend to facilitate the work of the 
Conferences and keep alive the interest from sitting to 
sitting. Third, a fund is to be raised, called the Empire 
Education Fund, the object of which is to promote knowl- 
edge respecting the outlying portions of the Empire, so as 
to enable the people of the Empire to think nationallv «id 
not parochially. Fourth, the Conference of 1907 mar^ «« 
conversion, or at least the committing, of the leader of the 
Conservative party, Mr. Balfour, to the principle of prefer- 
ential trade withm the Empire, so ably championed inthe 
Conferences of 1897 and 1902 by the great Colonial Secre- 
tary. Mr. Chamberiain. This question will, doubtless, be 
made one of the issues when appeal is next made to the 
people. The great self-governing Colonies, the Dominion 
of Canada, the Commonwealth of Australia. New Zealand 
and Cape Colony adopted some years ago the principle of 
preferential trade, each Colony passing the necessary legisk- 
tion to carry into effect a preference on the goods of the 
Mother Country imported into these respective Colonies, in 
the Conference of 1887 it was proposed by one of the rej^ 
resentatives, that for the purpose of encouraging trade a 

^^ t^nify of the Emp 


«v«,« derivable therefZT r T°^- "«> ""t the 
of deeding the Sr^'?^ ^"^ *"^'' *' «P«« 

;n the Contemn j„« cloSlo ^^^.", "" P"'P°«"' 

"..on, p,,s«i i„ the Conferen^^Z ..^T? """ 

Terence recognizes that th- ^ • . /yo2. That thw Con- 

between rSKLfcrS' "' P"*"""^ ">«'. 
beyond the Sea,, wojS aZf. ! ^'''""'' Do^Wona 
intercourse, aj „o^ T^"*J^ ''^'""« -«™erd"l 
«he re«„rc« ard wStri^ 'o^^'^ *' ""•'<*"«■« of 
*e Empire,- jjr AsS ^ T"^ '°^' »'«"8then 
express^ tie mtad ofT. taSSf^ "' *' Exchequer, 
lion to tl» Kttled policy of thf^l™??'^'?" " "PP"'" 
e«eption of Mr BoS P^l ?' v *^'*"""' *'"■ *« 
^h in the aho;e':S?„.fr Lt ; ^rth?!' " "1 

^nang the arguments put fomard by ttV*, '°"; 
Mmisters, that preferential trL as a mea^^, fo! ^''^''' 
sohdat on of the Emnir*. h^A j f "^"^ *® *=°"- 

anrl hoH k1 ^"iP're, had passed the stage of discussion 
and had become a settled principle. TheTuestl^ 
quently, simply remains in abeyance anH Jv ' ^""^ 
be done until the people of uL Sed kI ."'"^ '"''"' "^ 
abandon the strict ^rpretatfon o "/^ ^^^^^ ^.^ ^^ 
extent asked for by thT CoCal p ^m Lf A cli"^'1 

£^ation,:t"^^r4l^-^^^^^^^^^^ In^perial 

people tog«her as intimate trade relati™, n -L 

of Ansttalia ha, weU said:-.."r47X^ione']r.h':"""" 



^ The Unity of the Empire. 

and assist to make it a P°*'"; '7j^/.rux of the question 
Minister. Lord Salisbury ^ouchoi he _c^^^ ^^ ^^ ^ ^^^ ^ 

in these ^^"'^^"^"V^^'f; ."line how it can. by agreement 
tariff.. Every nation »^^'"8j^ u^ protection for 

.ith its --^^'^^''f,^\STtL'1^^ greatest possibe 
its industries, and at the same ^ ^ ^ it is m 

a cess to the marV.ets of Ij^^;^^^! ^ely stripped l^r- 
th. great battle Great ^^^^^^^^^^^^^^ battle is to 

self C.5 her armour and her weapojris y ^^^^ ^^ ^^., 
be fought. You cannot do b"»^^- ^„,, fight with 

suffering on those terms. ^J^^^^ ' ,,e contending 
the weapons with which thpse whc^^y^.^^ ^^^^^^^ ,^^^ 

against are fighting. ^^^^J^J^ ^ ^ost important point 
in their preferential tariff f ^^eme a m ^ ^^^^,^^^ 

'T^L in the ^^-l-^^^.:Zf^. U passenger 

for the establishment «« a "^^^^"^ Australia and New 

and freight route »^^^^^ .^^ M'^ed Route, bringing 
Zealand, popularly designated the , .^^^^^ ^^ 

these last named Colonies Ji^m ^hr^ ^^^^ ^^ ^^ ^ 

the Mother Country^stead^* a^ no- ^ .„,, gee 

Canal. For the purpose of car'^^g^ .^tnbuted by Great 

financial aid will be asked to b^ .„ ^^^i^able 

Britain. Canada. A"^*'^^ \^^",tselstant countries will be 
proportions. TJie transit to ^be-^ ^ ^^^.^^ ^m be 

Ue swift and ^^^y- . J° ^^^f' since the greatest corn- 
fraught with inestijn^e a^v^-;^ • ^^^ ^ ,„d of the 
„^rcial highway o^^the -'orlA^V^^^^ Conference of 1907 
Dominion to the other^. If the 1 pe ^^^^ ^^^^ ^ ^^^. 

had accomplished "°*mg f^ J ''''sir Wilfrid Laurier. our 
cient to demonstrate 1^ utihty. .„g ^„d carrying 

Premier, is entitled to the ^^^^^ °^^.^ ^Ucy. These are 
through this important -^J^^^^^^^^^.^perial Conference 
sorie of the advantages ad^^ved by ^^^^ ^^ .^^^^^^ 

of 1907. A:>ove and beyond these may 

The Unity of the Empire. 

benefits flowing from the free interchange of thought on all 
great questions of national import by leading statesmen 
from all parts of the Empire; also the like free discussion 
of the same subjects in the leading